The Fuller Court ruled 8–1 in Twining v. New Jersey (1908) that the Fifth Amendment privilege against self-incrimination did not apply to the states. This meant that a New Jersey trial judge did not violate the constitutional rights of defendants Albert Twining and David Cornell when he instructed the jury to consider the fact that the two men refused to take the stand to defend themselves. The trial judge gave a jury instruction, which stated in part: “Because a man does not go upon the stand you are not necessarily justified in drawing an inference of guilt. But you have a right to consider the fact that he does not go upon the stand where a direct accusation is made against him.”

After the two men, who were bank officials, were convicted of passing false information to a state banking examiner, they appealed their conviction to the U.S. Supreme Court.

In an opinion written by Justice William Moody, the Court ruled that New Jersey was free to adopt a privilege against self-incrimination but was not compelled to do so by the Federal Constitution. Moody noted that only four of the original thirteen states had incorporated a privilege against self-incrimination in their states. He added that the right against self-incrimination was not so fundamental a right that its absence would constitute a violation of due process. According to Moody, the essential elements of the Due Process Clause were notice of the charges and an opportunity to be heard.