Cite as: 524 U. S. 666 (1998)
Opinion of the Court
doctrine of Fourteenth Amendment due process incorporation to the Self-Incrimination Clause, so as to bind the States as well as the National Government to recognize the privilege. Id., at 3. Prior to Malloy, the Court had refused to impose the privilege against self-incrimination against the States through the Fourteenth Amendment, see Twining v. New Jersey, 211 U. S. 78 (1908), thus leaving state-court witnesses seeking exemption from compulsion to testify to their rights under state law, as supplemented by the Fourteenth Amendment's limitations on coerced confessions. Malloy, however, established that "[t]he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence." 378 U. S., at 8.
As the Court immediately thereafter said in Murphy, Malloy "necessitate[d] a reconsideration" of the unqualified Mur-dock rule that a witness subject to testimonial compulsion in one jurisdiction, state or federal, could not plead fear of prosecution in the other. 378 U. S., at 57. After Malloy, the Fifth Amendment limitation could no longer be seen as framed for one jurisdiction alone, each jurisdiction having instead become subject to the same claim of privilege flowing from the one limitation. Since fear of prosecution in the one jurisdiction bound by the Clause now implicated the very privilege binding upon the other, the Murphy opinion sensibly recognized that if a witness could not assert the privilege in such circumstances, the witness could be "whipsawed into incriminating himself under both state and federal law even though the constitutional privilege against self-incrimination is applicable to each." 378 U. S., at 55 (internal quotation marks omitted).7 The whipsawing was possible owing to a
7 Prior to Murphy, such "whipsawing" efforts had been permissible, but arguably less outrageous since, as the opinion notes, "either the 'compelling' government or the 'using' government [was] a State, and, until today,
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