Extending the Fifth

"The American system of criminal prosecution," wrote Justice William Brennan, "is accusatorial, not inquisitorial, and the Fifth Amendment is its essential mainstay." With those words, Brennan last week announced the Supreme Court's decision to reverse the contempt conviction of a small-time Connecticut 52-year-old gambler named William Malloy and extend the protection of the Fifth Amendment's privilege against self-incrimination to witnesses and defendants, whatever their status, in all state courts.

When a Hartford County crime commission three years ago tried to question Malloy about his employer and finances at the time of his 1959 arrest, Malloy invoked the privilege and refused to answer any questions. He was tossed into prison for contempt after a Connecticut court, relying on more than 50 years of the Supreme Court's own rulings, declared that the federal Fifth does not apply in state courts. Malloy had been assured by Connecticut authorities that because of the state's one year statute of limitations for misdemeanors, he was not exposing himself to further state prosecution, but the Supreme Court ruled that if he had been compelled to testify, he might have furnished "a link in a chain of evidence sufficient to connect him with a more recent crime for which he might still be prosecuted." The court's turnabout served notice on the states that from now on they will be required to honor the stricter federal protection against selfincrimination.

The court also overturned the New Jersey contempt conviction of two longshoremen who had invoked the privilege despite state pledges of immunity against prosecution. The longshoremen had argued that they feared federal authorities would use their state-immunized testimony to build a federal case against them. Putting an end to that peril, too, the court held "that the constitutional privilege against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law."

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