Malloy v. Hogan
378 U.S. 1 (1964)

Dissent:

     I cannot agree with the majority of my brothers and sisters in their decision to void the contempt citation in this case. Mr. Malloy claimed that to reply to the questions of a state court referee would possibly incriminate himself in violation of his Fifth Amendment protection.

     The Fifth Amendment has never been held to apply to the state courts, as we ruled as recently as Adamson v. California (1947). Even if it were made applicable to the states by the so-called "incorporation" doctrine, it should not be made binding in this case, because Malloy is not in jeopardy but only a witness. The referee was merely inquiring as to gambling in Connecticut, not into Malloy's possible criminality.

     Even if Malloy were to incriminate himself, a trial judge later could rule his self-incriminating statements as inadmissable. In fact, in the instant case, a trial judge ruled Malloy's claim to privilege to be without merit.

     I think my brethren here have made impossible the state's legitimate interests in inquiring into illegal activity. I dissent.

GALLAGHER, CJ