Anniversary of Twining v New Jersey: Rejecting the Fifth Amendment

Today marks the 109th anniversary of the devastating Supreme Court case of Twining v. New Jersey[1]. Twining[2] was a landmark case which established a clear path of incorporating Constitutional rights against the state via the 14th amendment, while simultaneously rejecting the incorporation of the 5th amendment right against self-incrimination.


The Case[3]

The case behind this landmark decision was sadly all to common in this era of criminal justice. Mr. Albert C. Twining and Mr. David C. Cornell bank directors of the Monmouth Trust & Safe Deposit Company were both indicted on charges of bank fraud. At trial both men chose to not take the stand at trial. At that time in New Jersey the law allowed for a jury instruction which allowed the jury to make an adverse inference form a defendant choosing not to testify at trial[4]. This effectively meant that juries were instructed to find guilt from a defendant exercising their 5th amendment right against self-incrimination. New Jersey was one of the few states that didn’t have a state constitution that allowed for the right against self-incrimination. Both men were found guilty and both men appealed arguing their 5th amendment right against self-incrimination had been violated by the New Jersey law.

Both men had their appeals denied by the New Jersey Applet Division and the Supreme Court of New Jersey. The men then sought a writ of certiorari and were granted cert in early 1908. Due to naming conventions, the two cases were consolidated and named after Albert Twinning.

The Argument

The Supreme Court heard arguments on March 19th and 20th 1908. Mr. Twinning’s lawyers argued that the federal constitution was supreme over the states. Thus, they reasoned that the 14th amendment enforced all the federal constitutional rights against the states, giving rights where they did not exist in state constitutions. With this reasoning, they argued that Mr. Twinning had been denied his 5th amendment right at trial by the New Jersey law allowing for an adverse inference from Mr. Twinning refusing to testify.

The State argued that while the 14th amendment allowed for the federal constitution to apply to the states, it did not allow for the creation of new rights that were not guaranteed by the state constitution. Further, the State argued that the adverse inference law was not a big factor in the jury’s determination of guilt.

The Decision

The Supreme Court Rendered its judgment on November 9th, 1908. In a 8 – 1 decision, the Majority held that Mr. Twining’s right against self-incrimination had not been violated. The majority, led by Justice William Henry Moody[5] held that the 14th amendment due process clause did apply to the states, but the 5th amendment right against self-incrimination was not one of the privileges contained in the privileges and immunities clause of the Constitution. At that time in American jurisprudence, the Supreme Court began vesting constitutional rights guaranteed in the bill of rights through the privileges and immunities clause of the Constitution which did not allow the Constitution to curtail state power. These cases began with what are known as the Slaughter-house cases. The Court then went on to lay out the doctrine of selective incorporation. This effective extended the federal Constitutional rights to all citizens, but those rights could only be exercised after they incorporated against the states by the Supreme Court on a case by case basis.

The lone dissenter, Justice John Marshall Harlan[6] argued that the Supreme Court should have decided if the 5th amendment applied to the states, and argued that the 5th amendment should apply to the states via the Due Process Clause of the 14th amendment.

Aftermath and Conclusion

The aftermath of the Twining decision would be felt for years. Twinning effectively laid out a long arduous path for incorporating all of the Constitutional rights against the states. The Twinning decision would be upheld 39 years later in the case of Adamson v. California[7][8].  Thankfully, Twinning was finally overturned in 1964 with the case of Malloy v. Hogan[9][10].

While this case would be eventually overturned it is important to note how the Supreme Court can make devastating decisions that take decades to correct. With Experienced Legal Representation, you can protect yourself from violations of your constitutional rights.

Written by Hunter J. White

[1] Twining v. New Jersey, 211 U.S. 78, 29 S. Ct. 14 (1908)







[8] Adamson v. California, 332 U.S. 46, 67 S. Ct. 1672 (1947)


[10] Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489 (1964)