Twining v. New Jersey
The Supreme Court ruled that New Jersey could let a jury draw an unfavorable inference against a criminal defendant who chose not to testify, because the federal Constitution's protection against self-incrimination does not bind the states.
The decision held that neither the privileges-and-immunities clause nor the due process clause of the Fourteenth Amendment forces states to follow the Fifth Amendment's self-incrimination protections, leaving states free to set their own rules on the subject.
“We are not invested with the jurisdiction to pass upon the expediency, wisdom or justice of the laws of the States as declared by their courts, but only to determine their conformity with the Federal Constitution and the paramount laws enacted pursuant to it.”
The majority explaining the limited role of the Court in reviewing state law.
How it got here: New Jersey trial and appellate courts affirmed the convictions; the defendants brought a writ of error to the U.S. Supreme Court.
The Case in Depth
What happened
Twining and Cornell were tried in a New Jersey court on criminal charges. At trial, the judge instructed the jury that it could draw an unfavorable inference against either defendant if he failed to testify and deny incriminating evidence he could have contradicted. Both men were convicted and sentenced to lengthy prison terms, and New Jersey's own courts had long permitted this kind of instruction, since New Jersey's state constitution, unlike most others, did not include an explicit privilege against self-incrimination.
The question before the Court
Does the Constitution stop a state from letting a jury hold it against a defendant that he didn't testify at his own criminal trial?
The Court's answer
No — the Constitution's protection against compelled self-incrimination did not, at the time, bind the states, so New Jersey was free to let juries draw an unfavorable inference from a defendant's silence. The Court found that this privilege is not one of the 'privileges or immunities of citizens of the United States,' which cover only rights tied to national citizenship itself, not the broader personal rights listed in the first eight Amendments.
The Court also rejected the argument that the privilege is required by due process. Reviewing English legal history and the debates around the Bill of Rights, it found the privilege developed as a separate rule of evidence, not as an inseparable part of fair legal procedure, and that due process requires only a court with proper authority and a fair chance to be heard — both of which were present here.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
For decades after this ruling, defendants in state courts had no federal constitutional shield against juries being told they could infer guilt from silence, unless a state's own constitution or laws provided that protection. States like New Jersey and Iowa, which lacked an explicit state constitutional privilege, were left to decide the issue for themselves.
What changes now
The judgment of the New Jersey Court of Errors and Appeals affirming the convictions stands as final. The ruling remained the governing rule on this question for decades, meaning defendants in states without their own explicit self-incrimination protections had no federal constitutional recourse if adverse inferences were drawn from their silence at trial. The opinion notes states remained free to change this rule through their own legislation if they wished.
What this does not decide
The Court expressly did not decide whether the jury instruction actually amounted to a violation of the self-incrimination privilege as a matter of New Jersey law; it assumed this only for the sake of argument. It also left open whether some other personal rights in the first eight Amendments might separately be required by due process.
Concurrences and dissents
Dissent — Justice Harlan
“It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American.”Harlan quoting an earlier opinion to argue compelled self-incrimination offends fundamental liberty.
Justice Harlan argued the Court should not have reached the broad constitutional question at all unless it first decided whether the trial court's instruction actually violated the self-incrimination privilege. On the merits, he argued immunity from self-incrimination was among the privileges and immunities of national citizenship secured by the Fifth Amendment and protected against state abridgment by the Fourteenth Amendment, and separately that compelling self-incrimination violates due process, warning that the majority's reasoning would let states similarly disregard protections against cruel punishment, free speech, double jeopardy, and unreasonable searches.
How the Court got there
The legal reasoning, step by step
- The Court first asked whether the privilege against compelled self-incrimination counts as a 'privilege or immunity of citizens of the United States' under the Fourteenth Amendment, which would bar states from abridging it.
- Relying on the Slaughter-House Cases, the Court held that this clause protects only rights arising from the nature of the national government itself, not the broader set of rights enumerated in the first eight Amendments to the Constitution -- so the self-incrimination privilege, even if fundamental, belongs to state citizenship, not national citizenship.
- The Court then turned to whether forcing a defendant to face an adverse inference from silence violates due process -- the guarantee that government not act arbitrarily and follow fair, established procedures. It examined the historical meaning of due process, tracing it to Magna Carta's 'law of the land,' and found that self-incrimination protections developed separately as a rule of evidence, not as part of due process itself.
- The Court asked whether the privilege is nevertheless so fundamental to liberty and justice that its denial would itself amount to a denial of due process. Surveying English legal history, the ratification debates over the Bill of Rights, and later state constitutions, the Court found no consistent view that the privilege was an inseparable part of due process, noting many states listed the privilege and due process as separate, independent guarantees.
- Applying its settled rule that due process requires only a court with jurisdiction and fair notice and opportunity to be heard, the Court concluded that instructing a jury it may draw an adverse inference from a defendant's silence does not deny either of those two core requirements, and therefore does not violate due process.
Doctrinal impact
Cases affected by this decision
Reaffirms Slaughter-House Cases (16 Wall. 36)
The Court relies on this case's rule that privileges of national citizenship are narrow and distinct from state citizenship rights.
Reaffirms Maxwell v. Dow (176 U.S. 581)
The Court follows this precedent holding that jury trial and grand jury indictment rights are not privileges of national citizenship binding on states.
Reaffirms Hurtado v. California (110 U.S. 516)
The Court relies on this case's due process framework requiring only jurisdiction and fair notice/hearing.