Malloy v. Hogan

In cases like Mallory v. United States (1957), however, the Warren Court had been moving towards a policy of overturning convictions obtained in state court through the use of confessions acquired through improper means, such as prolonged detention without arraignment. Writing for the five-member majority in Malloy, Justice Brennan made a connection between the prohibition against coerced confessions and the privilege against self-incrimination:

[T]oday the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions . . . Under this test, the constitutional inquiry is not whether the conduct of state officers in obtaining the confession was shocking, but whether the confession was "free and voluntary" . . . In other words the person must not have been compelled to incriminate himself.

The reason the Malloy Court was shifting to the federal standard concerning compelled testimony was the "recognition that the American system of criminal prosecution is accusatory, not inquisitional, and that the Fifth Amendment privilege is its essential mainstay." After Malloy, state prosecutors had to shoulder the entire burden of proof when witnesses proved unwilling to testify.

This decision was an important part of the "due process revolution" that reached its highest point during the tenure of Chief Justice Warren. During this revolution, most of the guarantees of the Bill of Rights--which had previously been thought to apply only to the federal government--were made to apply to the states through the Due Process Clause of the Fourteenth Amendment. The due process revolution affected many areas of the law, but criminal defendants--most of whom are tried in state courts--were among the primary beneficiaries of this shift in constitutional interpretation. The closeness of the vote in Malloy is one indication of how hard fought some of the battles were during the revolution. In fact, Justices White and Stewart, although concurring with the majority's view that the Fourteenth Amendment incorporated the privilege against self-incrimination, nevertheless dissented from the decision to apply the privilege to William Malloy. They did not believe that there had been any risk that he might incriminate himself.