Adamson v. California, 332 U.S. 46 (1947)
APPEAL FROM THE SUPREME COURT OF CALIFORNIA
MR. JUSTICE REED delivered the opinion of the Court.
The appellant, Adamson, a citizen of the United States, was convicted, without recommendation for mercy, by a jury in a Superior Court of the State of California of murder in the first degree. After considering the same objections to the conviction that are pressed here, the sentence of death was affirmed by the Supreme Court of the state. 27 Cal. 2d 478, 165 P.2d 3. Review of that judgment by this Court was sought and allowed under Judicial Code § 237; 28 U.S.C. § 344. The provisions of California law which were challenged in the state proceedings as invalid under the Fourteenth Amendment to the Federal Constitution are those of the state constitution and penal code in the margin. They permit the failure of a defendant to explain or to deny evidence against him to be commented upon by court and by counsel, and to be considered by court and jury. The defendant did not testify. As the trial court gave its instructions and the District Attorney argued the case in accordance with the constitutional and statutory provisions just referred to, we have for decision the question of their constitutionality in these circumstances under the limitations of § 1 of the Fourteenth Amendment.
The appellant was charged in the information with former convictions for burglary, larceny and robbery and pursuant to § 1025, California Penal Code, answered that he had suffered the previous convictions. This answer barred allusion to these charges of convictions on the trial. Under California’s interpretation of § 1025 of the Penal Code and § 2051 of the Code of Civil Procedure, however, if the defendant, after answering affirmatively charges alleging prior convictions, takes the witness stand to deny or explain away other evidence that has been introduced, “the commission of these crimes could have been revealed to the jury on cross-examination to impeach his testimony.” … This forces an accused who is a repeated offender to choose between the risk of having his prior offenses disclosed to the jury or of having it draw harmful inferences from uncontradicted evidence that can only be denied or explained by the defendant.
In the first place, appellant urges that the provision of the Fifth Amendment that no person “shall be compelled in any criminal case to be a witness against himself” is a fundamental national privilege or immunity protected against state abridgment by the Fourteenth Amendment or a privilege or immunity secured, through the Fourteenth Amendment, against deprivation by state action because it is a personal right, enumerated in the federal Bill of Rights.
We shall assume, but without any intention thereby of ruling upon the issue, that permission by law to the court, counsel and jury to comment upon and consider the failure of defendant “to explain or to deny by his testimony any evidence or facts in the case against him” would infringe defendant’s privilege against self-incrimination under the Fifth Amendment if this were a trial in a court of the United States under a similar law. Such an assumption does not determine appellant’s rights under the Fourteenth Amendment. It is settled law that the clause of the Fifth Amendment, protecting a person against being compelled to be a witness against himself, is not made effective by the Fourteenth Amendment as a protection against state action on the ground that freedom from testimonial compulsion is a right of national citizenship, or because it is a personal privilege or immunity secured by the Federal Constitution as one of the rights of man that are listed in the Bill of Rights.
The reasoning that leads to those conclusions starts with the unquestioned premise that the Bill of Rights, when adopted, was for the protection of the individual against the federal government, and its provisions were inapplicable to similar actions done by the states. Barron v. Baltimore, 7 Pet. 243… ***
***Nothing has been called to our attention that either the framers of the Fourteenth Amendment or the states that adopted intended its due process clause to draw within its scope the earlier amendments to the Constitution. Palko held that such provisions of the Bill of Rights as were “implicit in the concept of ordered liberty,” p. 302 U. S. 325, became secure from state interference by the clause. But it held nothing more.
Specifically, the due process clause does not protect, by virtue of its mere existence, the accused’s freedom from giving testimony by compulsion in state trials that is secured to him against federal interference by the Fifth Amendment. Twining v. New Jersey, 211 U. S. 78, 211 U. S. 99-114; Palko v. Connecticut, supra, p. 302 U. S. 323. ***
We find no other error that gives ground for our intervention in California’s administration of criminal justice.
MR. JUSTICE FRANKFURTER, concurring.
Less than ten years ago, Mr. Justice Cardozo announced as settled constitutional law that, while the Fifth Amendment, “which is not directed to the states, but solely to the federal government,” provides that no person shall be compelled in any criminal case to be a witness against himself, the process of law assured by the Fourteenth Amendment does not require such immunity from self-crimination: “in prosecutions by a state, the exemption will fail if the state elects to end it.” Palko v. Connecticut, 302 U. S. 319, 302 U. S. 322, 302 U. S. 324. Mr. Justice Cardozo spoke for the Court, consisting of Mr. Chief Justice Hughes, and McReynolds, Brandeis, Sutherland, Stone, Roberts, Black, JJ. (Mr. Justice Butler dissented.) The matter no longer called for discussion; a reference to Twining v. New Jersey, 211 U. S. 78, decided thirty years before the Palko case, sufficed.
Decisions of this Court do not have equal intrinsic authority. The Twining case shows the judicial process at its best — comprehensive briefs and powerful arguments on both sides, followed by long deliberation, resulting in an opinion by Mr. Justice Moody which at once gained and has ever since retained recognition as one of the outstanding opinions in the history of the Court. After enjoying unquestioned prestige for forty years, the Twining case should not now be diluted, even unwittingly, either in its judicial philosophy or in its particulars. As the surest way of keeping the Twining case intact, I would affirm this case on its authority.
***Between the incorporation of the Fourteenth Amendment into the Constitution and the beginning of the present membership of the Court — a period of seventy years — the scope of that Amendment was passed upon by forty-three judges. Of all these judges, only one, who may respectfully be called an eccentric exception, ever indicated the belief that the Fourteenth Amendment was a shorthand summary of the first eight Amendments theretofore limiting only the Federal Government, and that due process incorporated those eight Amendments as restrictions upon the powers of the States. Among these judges were not only those who would have to be included among the greatest in the history of the Court, but — it is especially relevant to note — they included those whose services in the cause of human rights and the spirit of freedom are the most conspicuous in our history. It is not invidious to single out Miller, Davis, Bradley, Waite, Matthews, Gray, Fuller, Holmes, Brandeis, Stone and Cardozo (to speak only of the dead) as judges who were alert in safeguarding and promoting the interests of liberty and human dignity through law. But they were also judges mindful of the relation of our federal system to a progressively democratic society, and therefore duly regardful of the scope of authority that was left to the States even after the Civil War. And so they did not find that the Fourteenth Amendment, concerned as it was with matters fundamental to the pursuit of justice, fastened upon the States procedural arrangements which, in the language of Mr. Justice Cardozo, only those who are “narrow or provincial” would deem essential to “a fair and enlightened system of justice.” Palko v. Connecticut, 302 U. S. 319, 302 U. S. 325. To suggest that it is inconsistent with a truly free society to begin prosecutions without an indictment, to try petty civil cases without the paraphernalia of a common law jury, to take into consideration that one who has full opportunity to make a defense remains silent is, in de Tocqueville’s phrase, to confound the familiar with the necessary.
The short answer to the suggestion that the provision of the Fourteenth Amendment, which ordains “nor shall any State deprive any person of life, liberty, or property, without due process of law,” was a way of saying that every State must thereafter initiate prosecutions through indictment by a grand jury, must have a trial by a jury of twelve in criminal cases, and must have trial by such a jury in common law suits where the amount in controversy exceeds twenty dollars, is that it is a strange way of saying it. It would be extraordinarily strange for a Constitution to convey such specific commands in such a roundabout and inexplicit way. ***
MR. JUSTICE BLACK, dissenting.
The appellant was tried for murder in a California state court. He did not take the stand as a witness in his own behalf. The prosecuting attorney, under purported authority of a California statute, Cal.Penal Code, § 1323 (Hillyer-Lake, 1945), argued to the jury that an inference of guilt could be drawn because of appellant’s failure to deny evidence offered against him. The appellant’s contention in the state court and here has been that the statute denies him a right guaranteed by the Federal Constitution. The argument is that (1) permitting comment upon his failure testify has the effect of compelling him to testify, so as to violate that provision of the Bill of Rights contained in the Fifth Amendment that “No person . . . shall be compelled in any criminal case to be a witness against himself”, and (2) although this provision of the Fifth Amendment originally applied only as a restraint upon federal courts, Barron v. Baltimore, 7 Pet. 243, the Fourteenth Amendment was intended to, and did, make the prohibition against compelled testimony applicable to trials in state courts.
***The first ten amendments were proposed and adopted largely because of fear that Government might unduly interfere with prized individual liberties. The people wanted and demanded a Bill of Rights written into their Constitution. ***
My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed, its submission and passage persuades me that one of the chief objects that the provisions of the Amendment’s first section, separately and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states. With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced. This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment.***
MR. JUSTICE MURPHY, with whom MR. JUSTICE RUTLEDGE concurs, dissenting.
While in substantial agreement with the views of MR. JUSTICE BLACK, I have one reservation and one addition to make.
I agree that the specific guarantees of the Bill of Rights should be carried over intact into the first section of the Fourteenth Amendment. But I am not prepared to say that the latter is entirely and necessarily limited by the Bill of Rights. Occasions may arise where a proceeding falls so far short of conforming to fundamental standards of procedure as to warrant constitutional condemnation in terms of a lack of due process despite the absence of a specific provision in the Bill of Rights.***
NOTES: A decade after the Palko decision, the Adamson case shows the majority using the Palko test to reject a claim that the Fifth Amendment protection against compelled self-incrimination should be applicable to the states through the Fourteenth Amendment Due Process Clause. The Adamson opinions are interesting because Justice Black argues in dissent that the Fourteenth Amendment was intended to apply the entire Bill of Rights to the states. And Justice Murphy’s dissent, while endorsing Black’s view, also argues that there could be other rights not listed in the Bill of Rights that also apply to the states through the Due Process Clause. Justice Frankfurter wrote his concurring opinion specifically to reject the dissenters’ argument that the entire Bill of Rights should be incorporated in the Due Process Clause and applied to the states.