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CRIMINAL PROCEDURE: UNDERGRADUATE EDITION/ HURTADO V. CALIFORNIA (1884)/ PALKO V. CONNECTICUT (1937)

< CRIMINAL PROCEDURE: UNDERGRADUATE EDITION

Hurtado v. California, 110 U.S. 516 (1884)  

U.S. Supreme Court

March 3, 1884  

[Syllabus: summary by clerk]  The constitution of the state of California adopted in 1879, in article 1, 8, provides as follows: ‘Offenses heretofore required to be prosecuted by indictment, shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county.’***. Section 809 of the Penal Code is as follows: ‘When a defendant has been examined and committed, as provided in section 872 of this Code, it shall be the duty of the district attorney, within thirty days thereafter, to file in the superior court of the county in which the offense is triable, an information charging the defendant with such offense. The information shall [110 U.S. 516, 518]   be in the name of the people of the state of California, and subscribed by the district attorney, and shall be in form like an indictment for the same offense.’  

In pursuance of the foregoing provision of the constitution, and of the several sections of the Penal Code of California, the district attorney of Sacramento county, on the twentieth day of February, 1882, made and filed an information against the plaintiff in error, charging him with the crime of murder in the killing of one Jose Antonio Stuardo. Upon this information, and without any previous investigation of the cause by any grand jury, the plaintiff in error was arraigned on the twenty-second day of March, 1882, and pleaded not guilty. A trial of the issue was thereafter had, and on May 7, 1882, the jury rendered its verdict, in which it found the plaintiff in error guilty of murder in the first degree. On the fifth day of June, 1882, the superior court of Sacramento county, in which the plaintiff in error had been tried, rendered its judgment upon said verdict, that the said Joseph Hurtado, plaintiff in error, be punished by the infliction of death, and the day of his execution was fixed for the twentieth day of July, 1882. From this judgment an appeal was taken  

JUSTICE MATTHEWS (the opinion of the Court)  

It is claimed on behalf of the prisoner that the conviction and sentence are void, on the ground that they are repugnant to that clause of the fourteenth article of amendment to the constitution of the United States, which is in these words: ‘Nor shall any state deprive any person of life, liberty, or property without due process of law.’ The proposition of law we are asked to affirm is that an indictment or presentment by a grand jury, as known to the common law of England, is essential to that ‘due process of law,’ when applied to prosecutions for felonies, which is secured and guarantied by this provision of the constitution of the United States, and which accordingly it is forbidden to the states, respectively, to dispense with in the administration of criminal law. The question is one of grave and serious import, affecting both private and public rights and interests of great magnitude, and involves a consideration of what additional restrictions upon the legislative policy of the states has been imposed by the fourteenth amendment to the constitution of the United States. ***  

[I]t is maintained on behalf of the plaintiff in error that the phrase ‘due process of law’ is equivalent to ‘law of the land,’ as found in the twenty-ninth chapter of Magna Charta; that by immemorial usage it has acquired a fixed, definite, and technical meaning; that it refers to and includes, not only the general principles of public liberty and private right… it has now been added as an additional security to the individual against oppression by the states themselves; that one of these institutions is that of the grand jury, an indictment or presentment by which against the accused in cases of alleged felonies is an essential part of due process of law, in order that he may not be harassed and destroyed by prosecutions founded only upon private malice or popular fury. 

***The real syllabus of the passage quoted [from a prior case] is that a process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country; but it by no means follows, that nothing else can be due process of law. The point in the case cited arose in reference to a summary proceeding, questioned on that account as not due process of law. The answer was, however exceptional it may be, as tested by definitions and principles of ordinary procedure, nevertheless, this, in substance, has been immemorially the actual law of the land, and, therefore, is due process of law. [110 U.S. 516, 529]   But to hold that such a characteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians.  

***Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law. It is, as we have seen, an ancient proceeding at common law, which might include every case of an offense of less grade than a felony, except misprision of treason; and in every circumstance of its administration, as authorized by the statute of California, it carefully considers and guards the substantial interest of the prisoner. It is merely a preliminary proceeding, and can result in no final judgment, except as the consequence of a regular judicial trial, conducted precisely as in cases of indictments. ***For these reasons, finding no error therein, the judgment of the supreme court of California is affirmed.  

JUSTICE JOHN HARLAN, dissenting.  

***As I cannot agree that the state may, consistently, with due process of law require a person to answer for a capital offense, except upon the presentment or indictment of a grand jury, and as human life is involved in the judgment rendered here, I do not feel at liberty to withhold a statement of the reasons for my dissent from the opinion of the court.  

***[The authors of the 14th Amendment] perceived no reason why, in respect of those rights, the same limitations should not be imposed upon the general government that had been imposed upon the states by their own constitutions. Hence the prompt adoption of the original amendments, by the fifth of which it is, among other things, provided that ‘no person shall be deprived of life, liberty, or property without due process of law.’ This language is similar to that of the clause of the fourteenth amendment now under examination. That similarity was not accidental, but evinces a purpose to impose upon the states the same restrictions, in respect of proceedings involving life, liberty, and property, which had been imposed upon the general government.  

‘Due process of law,’ within the meaning of the national constitution, does not import one thing with reference to the powers of the states and another with reference to the powers of the general government. If particular proceedings, conducted under the authority of the general government, and involving life, are prohibited because not constituting that due process of law required by the fifth amendment of the constitution of the United States, similar proceedings, conducted under the authority of a state, must be deemed illegal, as not being due process of law within the meaning of the fourteenth amendment. The words ‘due process of law,’ in the latter amendment, must receive the same interpretation they had at the common law from which they were derived, and which was given to them at the formation of the general government. What was that interpretation? [110 U.S. 516, 542]   In seeking that meaning we are, fortunately, not left without authoritative directions as to the source, and the only source, from which the necessary information is to be obtained.  

***It is said by the court that the constitution of the United States was made for an undefined and expanding future, and that its requirement of due process of law, in proceedings involving life, liberty, and property, must be so interpreted as not to deny to the law the capacity of progress and improvement; that the greatest security for the fundamental principles of justice resides in the right of the people to make their own laws and alter them at pleasure. It is difficult, however, to perceive anything in the system of prosecuting human beings for their lives, by information, which suggests that the state which adopts it has entered upon an era of progress and improvement in the law of criminal procedure. *** 

NOTES: The Hurtado case provides an example of an attorney trying to convince the Supreme Court to recognize against the states the Fifth Amendment right to be indicted by a grand jury by declaring that the grand jury right is part of the Fourteenth Amendment right to due process, and therefore applies to protect individuals in state court proceedings. The Supreme Court majority did not agree. However, Justice Harlan agreed and his dissenting opinion argued that the intent of the Fourteenth Amendment was to provide individuals with the same protection against state and local actions that they enjoyed against federal actions. Harlan’s argument did not carry the day, but over the course of more than ten decades, the Supreme Court gradually included many rights from the Bill of Rights—but not all rights—against state and local infringement.

Beginning with Gitlow v. New York (1925), in which the Supreme Court said that the First Amendment right to freedom of speech is protected from state and local infringement by the Fourteenth Amendment Due Process Clause, the Court decided other First Amendment cases similarly protecting free press and religious rights during the 1930s.   

PALKO V. CONNECTICUT (1937)

U.S. Supreme Court

Palko v. Connecticut 

302 U.S. 319 (1937)

JUSTICE BENJAMIN 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, Connecticut, for the crime of murder in the first degree. A jury 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. Upon such appeal, the Supreme Court of Errors reversed the judgment and ordered a new trial.  State v. Palko, 121 Conn. 669, 186 Atl. 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 murder. 

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 death. The Supreme Court of Errors affirmed the judgment of conviction 

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.  

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 a state, presentment or indictment by a grand jury may give way to informations at the instance of a public officer. Hurtado v. California, 110 U. S. 516; Gaines v. Washington, 277 U. S. 81,277 U. S. 86 The Fifth Amendment provides also that no person shall be 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, 211 U. S. 78, 211 U. S. 106, 211 U. S. 111, 211 U. S. 112. Cf. Snyder v. Massachusetts, supra, p. 291 U. S. 105; Brown v. Mississippi, 297 U. S. 278, 297 U. S. 285. 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. Walker v. Sauvinet, 92 U. S. 90; Maxwell v. Dow, 176 U. S. 581; New York Central R. Co. v. White, 243 U. S. 188, 243 U. S. 208; Wagner Electric Mfg. Co. v. Lyndon, 262 U. S. 226, 262 U. S. 232. As to the Fourth Amendment, one should refer to Weeks v. United States, 232 U. S. 383, 232 U. S. 398, and, as to other provisions of the Sixth, to West v. Louisiana, 194 U. S. 258

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, 299 U. S. 353, 299 U. S. 364; Herndon v. Lowry, 301 U. S. 242, 301 U. S. 259; or the like freedom of the press, Grosjean v. American Press Co., 297 U. S. 233; Near v. Minnesota ex rel. Olson, 283 U. S. 697, 283 U. S. 707; or the free exercise of religion, Hamilton v. Regents, 293 U. S. 245, 293 U. S. 262; cf. Grosjean v. American Press Co., supra; Pierce v. Society of Sisters, 268 U. S. 510; 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, 287 U. S. 45. In these and other situations, immunities that are valid as against the federal government by force of the specific pledges of particular amendments 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.” …. 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 would limit its scope, or destroy it altogether. [Footnote 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. … This is true, for illustration, of freedom of thought, and speech. 

***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 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. 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. … 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, 127 Atl. 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.*** 

The judgment is Affirmed. 

MR. JUSTICE BUTLER dissents. (Justice Butler merely noted that he “dissents”—meaning he disagreed with the majority’s decision. But he did not write an opinion to explain the reasons for his disagreement with the majority opinion) 

NOTES: In Palko v. Connecticut, Justice Cardozo put forward a “test” so that judges can know which rights in the Bill of Rights apply against the states and which rights in the Bill of Rights only apply against the federal government. As indicated by Cardozo, the rights that apply against the states are “of the very essence of a scheme of ordered liberty…[;] [the rights that embody] a ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” Obviously, this “test” is not easy to apply. It directs judges to decide if certain rights are “fundamental” and essential to a society that protects liberty. Cardozo’s test was very influential and justices made reference to it in their opinions for decades after the Palko decision. (But not all justices agreed that this was the proper test for deciding which rights to incorporate and apply throughout the nation against states and localities.) 

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CRIMINAL PROCEDURE: UNDERGRADUATE EDITION/ HURTADO V. CALIFORNIA (1884)/ PALKO V. CONNECTICUT (1937) based on Criminal Procedure: Undergraduate Edition by Christopher E. Smith 

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