U.S. Supreme Court
Palko v. State of Connecticut, 302 U.S. 319 (1937)
Argued Nov. 12, 1937. Decided Dec. 6, 1937.
Appeal from the Supreme Court of Errors of the State of Connecticut.
[302 U.S. 319, 320]
Messrs. David Goldstein and George A. Saden, both of Bridgeport, Conn ., for
Mr. Wm. H. Comley, of Bridgeport, Conn., for the State of Connecticut.
Mr. Justice CARDOZO delivered the opinion of the Court.
A statute of Connecticut permitting appeals in criminal cases to be taken by
the state is challenged by appellant as an infringement of the Fourteenth
Amendment of the Constitution of the United States. Whether the challenge
should be upheld is now to be determined.
Appellant was indicted in Fairfield County, Conn., for the crime of murder
in the first degree. A jury [302
U.S. 319, 321] found him guilty of murder in the second degree, and
he was sentenced to confinement in the state prison for life. Thereafter the
State of Connecticut, with the permission of the judge presiding at the trial,
gave notice of appeal to the Supreme Court of Errors. This it did pursuant to
an act adopted in 1886 which is printed in the margin. 1 Public Acts 1886, p. 560, now section 6494 of the
General Statutes. Upon such appeal, the Supreme Court of Errors reversed the
judgment and ordered a new trial. State v. Palko, 121 Conn. 669, 186 A. 657. It
found that there had been error of law to the prejudice of the state (1) in
excluding testimony as to a confession by defendant; (2) in excluding testimony
upon cross-examination of defendant to impeach his credibility; and (3) in the
instructions to the jury as to the difference between first and second degree
Pursuant to the mandate of the Supreme Court of Errors, defendant was
brought to trial again. Before a jury was impaneled, and also at later stages
of the case, he made the objection that the effect of the new trial was to
place him twice in jeopardy for the same offense, and in so doing to violate
the Fourteenth Amendment of the Constitution of the United States. Upon the
overruling of the objection the trial proceeded. The jury returned a verdict of
murder in the first degree, and the court sentenced the defendant to the
punishment of [302 U.S. 319,
322] death. The Supreme Court of Errors affirmed the judgment of
conviction ( 122 Conn. 529, 191 A. 320), adhering to a decision announced in
1894 ( State v. Lee, 65 Conn. 265, 30 A. 1110, 27 L.R.A. 498, 48 Am.St.Rep.
202) which upheld the challenged statute. Cf. State v. Muolo, 118 Conn. 373,
172 A. 875. The case is here upon appeal. 28 U.S.C. 344 (28 U.S.C.A. 344).
1. The execution of the sentence will not deprive appellant of his
life without the process of law assured to him by the Fourteenth Amendment of
the Federal Constitution.
The argument for appellant is that whatever is forbidden by the Fifth
Amendment is forbidden by the Fourteenth also. The Fifth Amendment, which is
not directed to the States, but solely to the federal government, creates
immunity from double jeopardy. No person shall be 'subject for the same offense
to be twice put in jeopardy of life or limb.' The Fourteenth Amendment ordains,
'nor shall any State deprive any person of life, liberty, or property, without
due process of law.' To retry a defendant, though under one indictment and only
one, subjects him, it is said, to double jeopardy in violation of the Fifth
Amendment, if the prosecution is one on behalf of the United States. From this
the consequence is said to follow that there is a denial of life or liberty
without due process of law, if the prosecution is one on behalf of the people
of a state. Thirty-five years ago a like argument was made to this court in
Dreyer v. Illinois,
U.S. 71, 85, 23 S.Ct. 28, and was passed without consideration of its
merits as unnecessary to a decision. The question is now here.
We do not find it profitable to mark the precise limits of the prohibition
of double jeopardy in federal prosecutions. The subject was much considered in
Kepner v. United States,
U.S. 100, 24 S.Ct. 797, 1 Ann.Cas. 655, decided in 1904 by a closely
divided court. The view was there expressed for a majority of the court that
the prohibition was not confined [302 U.S. 319, 323] to jeopardy in a new and independent
case. It forbade jeopardy in the same case if the new trial was at the instance
of the government and not upon defendant's motion. Cf. Trono v. United States,
U.S. 521, 26 S.Ct. 121, 4 Ann.Cas. 773. All this may be assumed for the
purpose of the case at hand, though the dissenting opinions (Kepner v. United
U.S. 100, 134, 137 S., 24 S.Ct. 797, 1 Ann.Cas. 655) show how much was to
be said in favor of a different ruling. Right-minded men, as we learn from
those opinions, could reasonably, even if mistakenly, believe that a second
trial was lawful in prosecutions subject to the Fifth Amendment, if it was all
in the same case. Even more plainly, right-minded men could reasonably believe
that in espousing that conclusion they were not favoring a practice repugnant
to the conscience of mankind. Is double jeopardy in such circumstances, if
double jeopardy it must be called, a denial of due process forbidden to the
States? The tyranny of labels (Snyder v. Massachusetts,
U.S. 97, 114, 54 S.Ct. 330, 335, 90 A.L.R. 575) must not lead us to leap to
a conclusion that a word which in one set of facts may stand for oppression or
enormity is of like effect in every other.
We have said that in appellant's view the Fourteenth Amendment is to be
taken as embodying the prohibitions of the Fifth. His thesis is even broader.
Whatever would be a violation of the original bill of rights ( Amendments 1 to
8) if done by the federal government is now equally unlawful by force of the
Fourteenth Amendment if done by a state. There is no such general rule.
The Fifth Amendment provides, among other things, that no person shall be
held to answer for a capital or otherwise infamous crime unless on presentment
or indictment of a grand jury. This court has held that, in prosecutions by a
state, presentment or indictment by a grand jury may give way to informations
at the instance of a public officer. Hurtado v. California,
U.S. 516, 4 S.Ct. 111, 292; Gaines v. Washington,
U.S. 81, 86, 48 S.Ct. 468, 470. The Fifth Amendment provides also that no
person shall be [302 U.S. 319,
324] compelled in any criminal case to be a witness against himself.
This court has said that, in prosecutions by a state, the exemption will fail
if the state elects to end it. Twining v. New Jersey,
U.S. 78, 106, 111 S., 112, 29 S.Ct. 14. Cf. Snyder v. Massachusetts, supra,
U.S. 97, at page 105, 54 S.Ct. 330, 332, 90 A.L.R. 575; Brown v.
U.S. 278, 285, 56 S.Ct. 461, 464. The Sixth Amendment calls for a jury
trial in criminal cases and the Seventh for a jury trial in civil cases at
common law where the value in controversy shall exceed $20. This court has
ruled that consistently with those amendments trial by jury may be modified by
a state or abolished altogether. Walker v. Sauvinet,
U.S. 90 ; Maxwell v. Dow,
U.S. 581, 20 S.Ct. 448, 494; New York Central R.R. Co. v. White,
U.S. 188, 208, 37 S.Ct. 247, L.R.A.1917D, 1, Ann. Cas.1917D, 629; Wagner
Electric Co. v. Lyndon,
U.S. 226, 232, 43 S.Ct. 589, 591. As to the Fourth Amendment, one should
refer to Weeks v. United States,
U.S. 383, 398, 34 S.Ct. 341, L.R. A. 1915B, 834, Ann.Cas. 1915C, 1177, and
as to other provisions of the Sixth, to West v. Louisiana,
U.S. 258, 24 S.Ct. 650.
On the other hand, the due process clause of the Fourteenth Amendment may
make it unlawful for a state to abridge by its statutes the freedom of speech
which the First Amendment safeguards against encroachment by the Congress (De
Jonge v. Oregon,
U.S. 353, 364, 57 S.Ct. 255, 260; Herndon v. Lowry,
U.S. 242, 259, 57 S.Ct. 732, 740) or the like freedom of the press
(Grosjean v. American Press Co.,
U.S. 233, 56 S.Ct. 444; Near v. Minnesota,
U.S. 697, 707, 51 S.Ct. 625, 627), or the free exercise of religion (
Hamilton v. Regents of University,
U.S. 245, 262, 55 S.Ct. 197, 204; cf. Grosjean v. American Press Co.,
supra; Pierce v. Society of Sisters,
U.S. 510, 45 S.Ct. 571, 39 A.L.R. 468), or the right of peaceable assembly,
without which speech would be unduly trammeled (De Jonge v. Oregon, supra;
Herndon v. Lowry, supra), or the right of one accused of crime to the benefit
of counsel (Powell v. Alabama,
U.S. 45, 53 S.Ct. 55, 87 A.L.R. 527). In these and other situations
immunities that are valid as against the federal government by force of the
specific [302 U.S. 319,
325] pledges of particular amendments2 have been found to be implicit in the concept of
ordered liberty, and thus, through the Fourteenth Amendment, become valid as
against the states.
The line of division may seem to be wavering and broken if there is a hasty
catalogue of the cases on the one side and the other. Reflection and analysis
will induce a different view. There emerges the perception of a rationalizing
principle which gives to discrete instances a proper order and coherence. The
right to trial by jury and the immunity from prosecution except as the result
of an indictment may have value and importance. Even so, they are not of the
very essence of a scheme of ordered liberty. To abolish them is not to violate
a 'principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental.' Snyder v. Massachusetts, supra,
U.S. 97, at page 105, 54 S.Ct. 330, 332, 90 A.L.R. 575; Brown v.
U.S. 278, at page 285, 56 S.Ct. 461, 464; Hebert v. Louisiana,
U.S. 312, 316, 47 S.Ct. 103, 104, 48 A.L.R. 1102. Few would be so narrow or
provincial as to maintain that a fair and enlightened system of justice would
be impossible without them. What is true of jury trials and indictments is true
also, as the cases show, of the immunity from compulsory self-incrimination.
Twining v. New Jersey, supra. This too might be lost, and justice still be
done. Indeed, today as in the past there are students of our penal system who
look upon the immunity as a mischief rather than a benefit, and who
[302 U.S. 319, 326]
would limit its scope, or destroy it altogether. 3 No doubt there would remain the need to give
protection against torture, physical or mental. Brown v. Mississippi, supra.
Justice, however, would not perish if the accused were subject to a duty to
respond to orderly inquiry. The exclusion of these immunities and privileges
from the privileges and immunities protected against the action of the States
has not been arbitrary or casual. It has been dictated by a study and
appreciation of the meaning, the essential implications, of liberty itself.
We reach a different plane of social and moral values when we pass to the
privileges and immunities that have been taken over from the earlier articles
of the Federal Bill of Rights and brought within the Fourteenth Amendment by a
process of absorption. These in their origin were effective against the federal
government alone. If the Fourteenth Amendment has absorbed them, the process of
absorption has had its source in the belief that neither liberty nor justice
would exist if they were sacrificed. Twining v. New Jersey, supra,
U.S. 78, at page 99, 29 S.Ct. 14, 19.4
This is true, for illustration, of freedom of thought and speech.
[302 U.S. 319, 327] Of
that freedom one may say that it is the matrix, the indispensable condition, of
nearly every other form of freedom. With rare aberrations a pervasive
recognition of that truth can be traced in our history, political and legal. So
it has come about that the domain of liberty, withdrawn by the Fourteenth
Amendment from encroachment by the states, has been enlarged by latter-day
judgments to include liberty of the mind as well as liberty of action.
5 The extension became, indeed, a
logical imperative when once it was recognized, as long ago it was, that
liberty is something more than exemption from physical restraint, and that even
in the field of substantive rights and duties the legislative judgment, if
oppressive and arbitrary, may be overridden by the courts. Cf. Near v.
Minnesota, supra; De Jonge v. Oregon, supra. Fundamental too in the concept of
due process, and so in that of liberty, is the thought that condemnation shall
be rendered only after trial. Scott v. McNeal,
U.S. 34, 14 S.Ct. 1108; Blackmer v. United States,
U.S. 421, 52 S.Ct. 252. The hearing, moreover, must be a real one, not a
sham or a pretense. Moore v. Dempsey,
U.S. 86, 43 S.Ct. 265; Mooney v. Holohan,
U.S. 103, 55 S.Ct. 340, 98 A.L.R. 406. For that reason, ignorant defendants
in a capital case were held to have been condemned unlawfully when in truth,
though not in form, they were refused the aid of counsel. Powell v. Alabama,
U.S. 45, at pages 67, 68, 53 S.Ct. 55, 63, 84 A.L.R. 527. The decision did
not turn upon the fact that the benefit of counsel would have been guaranteed
to the defendants by the provisions of the Sixth Amendment if they had been
prosecuted in a federal court. The decision turned upon the fact that in the
particular situation laid before us in the evidence the benefit of counsel was
essential to the substance of a hearing. [302 U.S. 319, 328] Our survey of the cases serves, we
think, to justify the statement that the dividing line between them, if not
unfaltering throughout its course, has been true for the most part to a
unifying principle. On which side of the line the case made out by the
appellant has appropriate location must be the next inquiry and the final one.
Is that kind of double jeopardy to which the statute has subjected him a
hardship so acute and shocking that our policy will not endure it? Does it
violate those 'fundamental principles of liberty and justice which lie at the
base of all our civil and political institutions'? Hebert v. Louisiana, supra.
The answer surely must be 'no.' What the answer would have to be if the state
were permitted after a trial free from error to try the accused over again or
to bring another case against him, we have no occasion to consider. We deal
with the statute before us and no other. The state is not attempting to wear
the accused out by a multitude of cases with accumulated trials. It asks no
more than this, that the case against him shall go on until there shall be a
trial free from the corrosion of substantial legal error. State v. Felch, 92
Vt. 477, 105 A. 23; State v. Lee, supra. This is not cruelty at all, nor even
vexation in any immoderate degree. If the trial had been infected with error
adverse to the accused, there might have been review at his instance, and as
often as necessary to purge the vicious taint. A reciprocal privilege, subject
at all times to the discretion of the presiding judge (State v. Carabetta, 106
Conn. 114, 137 A. 394), has now been granted to the state. There is here no
seismic innovation. The edifice of justice stands, its symmetry, to many,
greater than before.
2. The conviction of appellant is not in derogation of any privileges
or immunities that belong to him as a citizen of the United States.
[302 U.S. 319, 329]
There is argument in his behalf that the privileges and immunities clause of
the Fourteenth Amendment as well as the due process clause has been flouted by
Maxwell v. Dow, supra,
U.S. 581, at page 584, 20 S.Ct. 448, 494, gives all the answer that is
The judgment is affirmed.
Mr. Justice BUTLER dissents.
[Footnote 1] 'Sec. 6494. Appeals by the state in
criminal cases. Appeals from the rulings and decisions of the superior court or
of any criminal court of common pleas, upon all questions of law arising on the
trial of criminal cases, may be taken by the state, with the permission of the
presiding judge, to the supreme court of errors, in the same manner and to the
same effect as if made by the accused.'
A statute of Vermont (G.L. 2598) was given the same effect and upheld as
constitutional in State v. Felch, 92 Vt. 477, 105 A. 23.
Other statutes, conferring a right of appeal more or less limited in scope,
are collected in the American Law Institute Code of Criminal Procedure, June
15, 1930, p. 1203.
[Footnote 2] First Amendment: 'Congress shall
make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.'
Sixth Amendment: 'In all criminal prosecutions, the accused shall enjoy the
right ... to have the Assistance of Counsel for his defense.'
[Footnote 3] See, e.g. Bentham, Rationale of
Judicial Evidence, Book IX, Pt. 4, c. III; Glueck, Crime and Justice, p. 94.
Cf. Wigmore, Evidence, vol. 4, 2251.
Compulsory self-incrimination is part of the established procedure in the
law of Continental Europe. Wigmore, supra, p. 824; Garner, Criminal Procedure
in France, 25 Yale L.J. 255, 260; Sherman, Roman Law in the Modern World, vol.
2, pp. 493, 494; Stumberg, Guide to the Law and Legal Literature of France, p.
184. Double jeopardy too is not everywhere forbidden. Radin, Anglo American
Legal History, p. 228.
[Footnote 4] 'It is possible that some of the
personal rights safeguarded by the first eight Amendments against national
action may also be safeguarded against state action, because a denial of them
would be a denial of due process of law. Chicago, Burlington & Quincy
Railroad Co. v. Chicago,
U.S. 226, 17 S.Ct. 581. If this is so, it is not because those rights are
enumerated in the first eight Amendments, but because they are of such a nature
that they are included in the conception of due process of law.'
[Footnote 5] The cases are brought together in
Warren, The New Liberty under the 14th Amendment, 39 Harv.L.Rev. 431.