Appellant
Frank Palko
Appellee
State of Connecticut
Appellant's Claim
That when the state tried him a second time for the same offense, it violatedthe constitutional prohibition on double jeopardy.
Chief Lawyers for Appellant
David Goldstein, George A. Saden
Chief Lawyer for Appellee
William H. Comley
Justices for the Court
Hugo Lafayette Black, Louis D. Brandeis, Benjamin N. Cardozo (writing for theCourt), Charles Evans Hughes, James Clark McReynolds, Owen Josephus Roberts,Harlan Fiske Stone, George Sutherland
Justices Dissenting
Pierce Butler
Place
Washington, D.C.
Date of Decision
6 December 1937
Decision
The Supreme Court upheld the Connecticut law that permitted the state to appeal judgments, and retry defendants, in certain criminal cases.
Significance
Palko was not the first test of the applicability of the Bill of Rights at the state level, but it marked the introduction of a new approach to theproblem.
Frank Palko was indicted for first degree murder in Fairfield County, Connecticut. After a jury trial, he was found guilty of murder in the second degree,a lesser crime, and sentenced to life in prison. A state law, however, permitted Connecticut to appeal the outcome of his case, and it did so. The Connecticut Supreme Court then found that there had been three errors in the state's favor during the trial: 1) testimony about the defendant's confession had been excluded; 2) testimony from cross-examination of the defendant which challenged his credibility was excluded; and 3) the judge had erred in distinguishing first and second degree murder during his instructions to the jury. Thestate supreme court overturned the verdict of the first trial and granted a second. At the second trial, Palko was found guilty of first degree murder andsentenced to death.
During his second trial, Palko had repeatedly objected that his constitutional right not to be subjected to double jeopardy--that is, being tried twice for the same offense--was being violated. The prohibition against double jeopardy appears in the Fifth Amendment, and thus applies only to federal proceedings. Palko, however, cited the Due Process Clause of the Fourteenth Amendment:"No state shall . . . deprive any person of life, liberty, or property, without due process of law." He insisted that this provision made the prohibitionagainst double jeopardy applicable to the states, as well. The Connecticut Supreme Court disagreed, upholding his conviction for first degree murder. Palko then appealed to the U.S. Supreme Court.
Supreme Court Announces a "Fundamental Fairness" Test for Constitutional Limits on State Power
The due process argument Palko made really dates from two dissenting opinionswritten much earlier by Justice John Marshall Harlan I: Hurtado v. California (1884) and Twining v. State of New Jersey (1908). Although itwas decidedly a minority view at the time, in both of these cases, Harlan advanced the theory that after ratification of the Fourteenth Amendment in 1868, any act that violated the Bill of Rights was unconstitutional both at the federal and the state levels. This interpretation of the Due Process Clause, which came to be known as the incorporation doctrine, was later vigorously championed by Justice Black in the 1940s, 1950s and 1960s. Eventually, all but afew of the guarantees of the Bill of Rights were incorporated into the Fourteenth Amendment.
At the time the Supreme Court heard Palko, however, the incorporationdoctrine had been only partially developed. In his opinion for the Court, Justice Cardozo acknowledged that some aspects of the first eight amendments tothe Constitution had been made to apply to the states. Nonetheless, he said,these developments did not mean that such application was automatic. Instead,he said, only certain rights lent themselves to incorporation:
Cardozo cited such rights as the First Amendment guarantees of free speech, free press, and free religion and the Sixth Amendment guarantee of the right to counsel as the types of fundamental protections that should obviously applyto states as well as the federal government. With regard to the case beforethem, however, a majority of the justices did not believe that any of Palko'sfundamental rights had been violated. Instead, the Connecticut law at issuewas intended to rectify substantial errors at trial. And it seemed to the justices that the law had been properly applied in Palko's case. His death sentence stood.
The Court would later overturn Palko with Benton v. Maryland (1969), an important, if belated, step in the so-called "due process revolution" which realized the theory behind the incorporation doctrine. In its early stages, the due process revolution found its most ardent spokesman in JusticeBlack. In the later stages of his career Black would grow more conservative,but from the late 1940s through the early 1960s, he championed the incorporation of a range of rights protecting individual liberties--including those ofcriminal defendants. His opponent in this debate was Justice Felix Frankfurter, who favored the "fundamental fairness" test for incorporation of rights into the Fourteenth Amendment. In the end, Black's more liberal approach was adopted, and the due process revolution saw its fullest flowering during the tenure of Chief Justice Earl Warren.
Related Cases
Frank Palko
Appellee
State of Connecticut
Appellant's Claim
That when the state tried him a second time for the same offense, it violatedthe constitutional prohibition on double jeopardy.
Chief Lawyers for Appellant
David Goldstein, George A. Saden
Chief Lawyer for Appellee
William H. Comley
Justices for the Court
Hugo Lafayette Black, Louis D. Brandeis, Benjamin N. Cardozo (writing for theCourt), Charles Evans Hughes, James Clark McReynolds, Owen Josephus Roberts,Harlan Fiske Stone, George Sutherland
Justices Dissenting
Pierce Butler
Place
Washington, D.C.
Date of Decision
6 December 1937
Decision
The Supreme Court upheld the Connecticut law that permitted the state to appeal judgments, and retry defendants, in certain criminal cases.
Significance
Palko was not the first test of the applicability of the Bill of Rights at the state level, but it marked the introduction of a new approach to theproblem.
Frank Palko was indicted for first degree murder in Fairfield County, Connecticut. After a jury trial, he was found guilty of murder in the second degree,a lesser crime, and sentenced to life in prison. A state law, however, permitted Connecticut to appeal the outcome of his case, and it did so. The Connecticut Supreme Court then found that there had been three errors in the state's favor during the trial: 1) testimony about the defendant's confession had been excluded; 2) testimony from cross-examination of the defendant which challenged his credibility was excluded; and 3) the judge had erred in distinguishing first and second degree murder during his instructions to the jury. Thestate supreme court overturned the verdict of the first trial and granted a second. At the second trial, Palko was found guilty of first degree murder andsentenced to death.
During his second trial, Palko had repeatedly objected that his constitutional right not to be subjected to double jeopardy--that is, being tried twice for the same offense--was being violated. The prohibition against double jeopardy appears in the Fifth Amendment, and thus applies only to federal proceedings. Palko, however, cited the Due Process Clause of the Fourteenth Amendment:"No state shall . . . deprive any person of life, liberty, or property, without due process of law." He insisted that this provision made the prohibitionagainst double jeopardy applicable to the states, as well. The Connecticut Supreme Court disagreed, upholding his conviction for first degree murder. Palko then appealed to the U.S. Supreme Court.
Supreme Court Announces a "Fundamental Fairness" Test for Constitutional Limits on State Power
The due process argument Palko made really dates from two dissenting opinionswritten much earlier by Justice John Marshall Harlan I: Hurtado v. California (1884) and Twining v. State of New Jersey (1908). Although itwas decidedly a minority view at the time, in both of these cases, Harlan advanced the theory that after ratification of the Fourteenth Amendment in 1868, any act that violated the Bill of Rights was unconstitutional both at the federal and the state levels. This interpretation of the Due Process Clause, which came to be known as the incorporation doctrine, was later vigorously championed by Justice Black in the 1940s, 1950s and 1960s. Eventually, all but afew of the guarantees of the Bill of Rights were incorporated into the Fourteenth Amendment.
At the time the Supreme Court heard Palko, however, the incorporationdoctrine had been only partially developed. In his opinion for the Court, Justice Cardozo acknowledged that some aspects of the first eight amendments tothe Constitution had been made to apply to the states. Nonetheless, he said,these developments did not mean that such application was automatic. Instead,he said, only certain rights lent themselves to incorporation:
[S]pecific pledges of particular amendments have been found to be implicit in the concept of ordered liberty . . . The line of division may seem to be wavering and broken [but] . . . There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence . . .[T]hey are of the very essence of a scheme of ordered liberty . . . "principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." [Quoting Snyder v. Massachusetts (1934)]
Cardozo cited such rights as the First Amendment guarantees of free speech, free press, and free religion and the Sixth Amendment guarantee of the right to counsel as the types of fundamental protections that should obviously applyto states as well as the federal government. With regard to the case beforethem, however, a majority of the justices did not believe that any of Palko'sfundamental rights had been violated. Instead, the Connecticut law at issuewas intended to rectify substantial errors at trial. And it seemed to the justices that the law had been properly applied in Palko's case. His death sentence stood.
The Court would later overturn Palko with Benton v. Maryland (1969), an important, if belated, step in the so-called "due process revolution" which realized the theory behind the incorporation doctrine. In its early stages, the due process revolution found its most ardent spokesman in JusticeBlack. In the later stages of his career Black would grow more conservative,but from the late 1940s through the early 1960s, he championed the incorporation of a range of rights protecting individual liberties--including those ofcriminal defendants. His opponent in this debate was Justice Felix Frankfurter, who favored the "fundamental fairness" test for incorporation of rights into the Fourteenth Amendment. In the end, Black's more liberal approach was adopted, and the due process revolution saw its fullest flowering during the tenure of Chief Justice Earl Warren.
Related Cases
- Hurtado v. California, 110 U.S. 516 (1884).
- Twining v. State of New Jersey, 211 U.S. 78 (1908).
- Adamson v. California, 332 U.S. 46 (1947).
- Benton v. Maryland, 395 U.S. 784 (1969).
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