PALKO v.
302
MR. JUSTICE CARDOZO delivered
the opinion of the Court.
A statute of
the
Constitution of the
Appellant was indicted in
second degree, and he was
sentenced to confinement in the state prison for life. Thereafter the State of
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. n1 Public Acts, 1886, p.
560; now §
6494 of the General Statutes. Upon
such appeal, the Supreme Court of Errors reversed the judgment and [***4]
ordered a new trial. State v. Palko,
121
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 murder.
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n1
"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 Atl. 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.
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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
sentenced the defendant to
the punishment of [*322] death. The Supreme Court of Errors affirmed
the judgment of conviction, 122
adhering to a decision
announced in 1894, State v. Lee, 65
Atl.
875. The case is here upon appeal.
28 U. S. C., § 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 [***6] 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
on behalf
of the People of a State.
Thirty-five years ago a like argument was made to this court in Dreyer v.
consideration
of its merits as unnecessary [***7] 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 [**151]
Kepner v.
was not confined [*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.
opinions (195
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 [***8] 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.
effect in
every other.
[2]
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 I to VIII) 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
[***9] a state, presentment or
indictment by a grand jury may give way to informations
at the
instance of
a public officer. Hurtado v.
shall be [*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.
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
twenty
dollars. This court has ruled that
consistently with those amendments trial by jury may be modified by a state or
abolished altogether.
226, 232. As to the Fourth Amendment, one should refer to Weeks
v.
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.
freedom of the press, Grosjean v. American Press Co., 297
assembly, without which
speech would be unduly trammeled, De Jonge v.
crime to
the benefit of counsel, Powell v.
by force of the specific [*325]
pledges [**152] of particular amendments n2 have been found
to be implicit in the concept of ordered liberty, and thus, through
the Fourteenth Amendment,
become valid as against the states.
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n2 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 defence."
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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
[***12] 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.
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.
as in the past there are [***13]
students of our penal system who look upon the immunity as a mischief
rather than a benefit, and who [*326] would limit its
scope, or destroy it
altogether. n3 No doubt there would remain the need to give protection against
torture, physical or mental. Brown v.
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.
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n3 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
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.
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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.
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 [**153]
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. n5 The extension became,
indeed, a logical imperative when once it was
recognized, [***15]
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.
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,
154
Mooney v. Holohan,
294
form, they were refused the
aid of counsel. Powell v.
been guaranteed [***16]
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.
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n4 ". . . 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.
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."
n5 The cases are brought
together in Warren, The New Liberty under the 14th Amendment, 39 Harv. L. Rev. 431.
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[*328]
Our survey of the cases serves, we think, to justify the statement that
the dividing line between [***17] 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 polity 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.
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
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
innovation. The edifice of justice stands, its symmetry, to many,
greater than before.
[3]
2. The conviction of
appellant is not in derogation of any privileges or immunities that belong to
him as a citizen of the
[*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
the
judgment.
Maxwell v. Dow, supra, p. 584,
gives all the answer that is necessary.
The judgment is
Affirmed.
MR. JUSTICE BUTLER
dissents. [***19]