The clause of the Fifth Amendment, protecting a person against being compelled to be a witness against himself, is not made effective by the Fourteenth Amendment as a protection against state action because freedom from testimonial compulsion is a right of national citizenship; it is a personal privilege or immunity secured by the Federal Constitution as one of the rights of man that are listed in the Bill of Rights.
Defendant contended that he could not take the stand to deny the evidence against him because he would be subjected to a cross-examination as to former crimes to impeach his veracity and the evidence so produced could have brought about his conviction. Such cross-examination was allowable in California under Cal. Penal Code § 1323 and Cal. Const. art. I, § 13, and defendant contended that they denied him due process.
Is the Fifth Amendment privilege against self-incrimination incorporated into the Fourteenth Amendment?
The due process clause did not protect defendant's freedom from giving testimony by compulsion in state trials. The Fourteenth Amendment prevented a state from abridging the privileges and immunities of citizens of the United States, but a state was free to abridge, within the limits of the due process clause, the privileges and immunities flowing from state citizenship. Failure of defendant to testify was not an admission of the truth of the adverse evidence. Instructions told the jury that the burden of proof remained upon the state and the presumption of innocence remained with defendant. Comment on failure to deny proven facts did not in California tend to supply any missing element of proof of guilt.