Brief Fact Summary. Palko was indicted for murder of the first degree. The jury found him guilty of murder in the second degree and Connecticut appealed.
Synopsis of Rule of Law. The ban on double jeopardy was found not to be sufficiently fundamental under the selective corporation/fundamental rights approach to be incorporated in the due process clause of the Fourteenth Amendment and made applicable to the states.
Issue. Does the Fifth Amendment apply to the states through the due process clause of the Fourteenth Amendment?
Held. Justice Cardozo. No.
The Fifth Amendment, which is directed at the federal government creates immunity from double jeopardy by saying that no one shall be “subject for the same offense to be twice put in jeopardy of life or limb”. The Fourteenth Amendment provides that “nor shall any State deprive any person of life, liberty or property without due process of law.”
The first argument that all the original bill of rights should all be applied to the states through the fourteenth amendment is denied. There is no such general rule.
Instead, amendments are incorporated according to whether the amendment protects a right that is implicit to the concept of ordered liberty. Although the right to trial by jury and grand jury indictment is valuable and important, they are not of the every essence of a scheme of ordered liberty.
The case here is not one where the first trial was free from error and the state simply wanted to try the accused over again or to bring another case against him. The Court considered whether the statute allowed the prosecution to retry Palko until there was a trial free from substantial legal error. If there had been a trial adverse to the accused, there might have been review at his instance and as often as necessary to purge the vicious taint.
Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them.View Full Point of Law