What Exactly is Due Process?

Palko v Connecticut and Adamson v California set out some of the first contours of the apparently simple phrase “Due Process.”[1]  This essay will explain each case.  It will then summarize many of the Constitutional rights the Fourteenth Amendment’s “Due Process” clause encompasses today.

Palko v Connecticut[2]


Palko was indicted for murder and a jury found him guilty.  He was sentenced to prison for life.  Then, the State of Connecticut appealed based on an 1886 Connecticut statute which permitted appeals by the state based upon questions of law arising in the trial of criminal cases, in the same manner as if made by the accused.[3]  The Connecticut court appealed to found that there had been errors of law (excluding a confession, excluding cross-examination evidence for impeachment purposes, and improperly charging the jury on the difference between first and second-degree murder).[4]  The defendant was brought to trial again, which he objected to, citing the due process clause of the Fourteenth Amendment, essentially because the effect of the new trial was double jeopardy for the same offense. His objection was overruled and the jury this time returned a verdict of murder in the first degree.  The court sentenced him to death.  The Connecticut high court affirmed the verdict, and Palko appealed to the Supreme Court.  There, he lost as well.


The issue before the Supreme Court was whether the due process clause of the Fourteenth Amendment should be taken as embodying the prohibitions of the Fifth Amendment.  The Fifth Amendment applies to the federal government, while the Fourteenth Amendment extends protections to all State courts as well.[5]

The court asked, Does [exposing the defendant to this type of hardship] violate those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions?



Rule and Holding

The Court answered “No,” explaining that the state “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.”

On the one hand, the Court gave some examples of what would lie at the heart of the concept of ordered liberty, including freedom of speech, freedom of the press, free exercise of religion, and the right to counsel.


On the other hand, the Court explained that it would be “narrow or provincial” to expect that the right to a trial by jury and the right to an indictment before prosecution of a defendant could begin, were “of the very essence of a scheme of ordered liberty” or “that to maintain that a fair and enlightened system of justice would be impossible without them.”  The Court found that immunity from compulsory self-incrimination was similarly non-fundamental to the concept of due process. The explanation the Court gave as to what was part of due process in the case law and what was not, was simply, “It has been dictated by a study and appreciation of the meaning, the essential implications, of liberty itself.”  The test of whether something in the Bill of Rights was absorbed into the Fourteenth Amendment’s Due Process clause was simple: if neither liberty nor justice would exist if they were sacrificed, then the concept must be part of due process.


Palko v Connecticut was overruled in 1969 in the case Benton v Maryland, and double jeopardy was henceforth applied to the States through the Fourteenth Amendment.  Still, Palko remains at the gate of a discussion of due process, and some of the reasoning is applied even today.

Post script:  Palko opened my eyes to the idea that weak cases can contain some real strengths.  Don’t like the central holding? Maybe it will get overruled later (this one was).  In the meantime, mine the lesser holdings and the dicta for the way the Court thinks, the foundations of its reasoning, and the assumptions that will help a client now.  This was a 1937 case which explained confidently many necessary elements of Due Process.  Defendants since then have been able to rely on this badly held case, that they have a right, for instance, to counsel. 


The other case that helps define due process is Adamson v California.[6]


Adamson was convicted of murder in the first degree and sentenced to death.  He argued on appeal to the highest court in California, and then, when that court affirmed the conviction, to the Supreme Court,  that the law in California violated the Fourteenth Amendment’s due process clause. Adamson argued that because California law allowed the court and counsel to comment upon the failure of the defendant to testify in his own defense, it was unconstitutional.  The California law stated that when a defendant affirmed that he had previous convictions, no allusion to those convictions could be made by the prosecutor.  Yet, if the defendant took the stand later to deny or explain away any other evidence that had been introduced, the commission of the previous crimes could be revealed to the jury on cross-examination to impeach his testimony.  This, the Supreme Court commented, “forces an accused who is a repeat offender to choose between the risk of having his prior offenses disclosed to a jury or of having it draw harmful inferences from uncontradicted evidence that can only be denied or explained by the defendant.”  Adamson had two arguments:

1)      The Fifth Amendment states that no person shall be compelled in any criminal case to be a witness against himself and this right is so fundamental as to extend it to the Fourteenth Amendment, making it applicable in State courts too.

2)      The Due Process clause of the Fourteenth Amendment invalidates the California law because comment on failure to testify is permitted, and he was forced to forego testifying because of the danger of disclosure of his past convictions on cross-examination, and the presumption of his innocence was infringed by shifting the burden of proof to Adamson in permitting comment on his failure to testify.


The Supreme Court wrote in dicta that if in federal court, such a law would assumedly infringe on the defendant’s Fifth Amendment right against self-incrimination.  However, the Court did not hold that such a right proceeded to State courts via the Fourteenth Amendment’s Due Process clause. 


The Court explained that the Bill of Rights when adopted, were for the protection of the individual against the federal government.  When the Fourteenth Amendment was adopted, that changed, but not all at once, and not entirely including everything in the Bill of Rights.  In Twinings v New Jersey, the Court reasoned, the right against self-incrimination was determined to be beyond the scope of the Fourteenth Amendment’s privileges and immunities clause, since Palko and Twinings together stood for the proposition that protection against self-incrimination is not a privilege or immunity of national citizenship. The Court wrote that the Fourteenth Amendment did not extend the right against self-incrimination as part of defendant’s right to a fair trial, which was a part of due process.  The rationale of the Court was that “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. . .” citing Twinings v New Jersey once more, and citing Palko v Connecticut.[7]  The Court commented that silence could properly infer guilt, because the prosecutor’s evidence may be of such factual matters “such as are necessarily in the knowledge of the accused.  In that case a failure to explain would point to an inability to explain.”  (Emphasis added).  This wobbly inference—and it is wobbly, for there are many reasons why a defendant may choose to remain silent; this case illustrates only one—allowed the Court to continue “a state may control such a situation in accordance with its own ideas of the most efficient administration of criminal justice. . .”  Then, did California law “control such a situation” in a Constitutional manner?

The Court held:

1)      Due Process or other grounds did not invalidate a State statute that authorized comment on the failure to explain or deny adverse testimony, and this did not amount to shifting the burden of proof from the prosecutor to the defendant to go forward with the evidence.

2)      Failure of the accused to testify is not an admission of the truth of the adverse evidence.

3)      Instructions told the jury that the burden of proof remains solely upon the state and the presumption with the accused.

4)      Comment on failure to deny proven facts does not supply any element of truth of guilt, but directs attention to the strength of the prosecutor’s case or the weakness of the evidence for the defense.


Thus, the Court agreed with the highest court in California that the Fourteenth Amendment’s Due Process clause was not implicated by Adamson’s catch-22 (to explain himself, and be found to lack credibility for failure to ‘own’ past misdeeds properly, or to be silent and subject himself to the inference that his case is weak).

Post script: How does the Court so easily say in one paragraph that “failure to explain would point to an inability to explain” and then hold that California law is proper because “failure of the accused to testify is not an admission of the truth of the adverse evidence”?  How can the Court be apparently aware of its own prejudice (silence is probative evidence in their minds) yet by the end of the Opinion, be blinded by the fact that juries, nudged in the very same direction by prosecutors, will be prejudiced in the same way?  What’s the point of a law if no one is paying attention to it?

A Summary of Due Process concepts today

These are some of the questions that the Court has used to define the contours of the due process clause of the Fourteenth Amendment.

  • Is the right among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions?” (Duncan citing Powell v. Alabama)[8]
  • Is it basic in our system of jurisprudence?” (Duncan)[9]
  • “Did the Framers of the Fourteenth Amendment intend its due process clause to draw within its scope the earlier amendments to the Constitution?” (Rochin)[10]
  • “Is it fundamental to an ordered concept of liberty?” (Palko)[11]
  • “Does the conduct shock the conscience?” (Rochin)[12]
  • “Is the conduct so brutal and so offensive to human dignity that it offends the community’s sense of fair play and decency?” (Rochin)[13]
  • Is it a fundamental right, essential to a fair trial?” (Duncan, citing Gideon v. Wainwright)[14]
  • Has the government purpose to control or prevent activities constitutionally subject to state regulation been achieved by means which sweep unnecessarily broadly and thereby invade the areas of protected freedoms? (Griswold)[15]
  • Is it a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants? (Duncan)[16]


1)      No coerced confessions (Rochin)[17]

2)      Right to counsel (Palko)[18]

3)      Freedom of speech (Palko)[19]

4)      Freedom of press (Palko)[20]

5)      Freedom of religion (Palko)[21]

6)      Right to Privacy (Griswold)[22]

7)      Right to compensation for property taken by the State (Duncan)[23]

8)      The Fourth Amendment right to be free from any unreasonable search or seizure (Duncan)[24]

9)      The right to have any evidence excluded from trial which was illegally seized (Duncan)[25]

10)  The right to be free from compelled self-incrimination (Duncan)[26]

11)  The right to a speedy and public trial (Duncan)[27]

12)  The right to confrontation of opposing witnesses (Duncan)[28]

13)  The right to compulsory process for obtaining witnesses (Duncan)[29]

14)  Right to a jury in all those cases where a jury is required in federal court (Duncan)[30]


 I wrote this because I loved Due Process before I ever knew what it meant.  I had a Criminal Justice professor say to my class, “I think people who want to be defense attorneys are very, very interested in Due Process.” I knew it had to do with the Constitution, and with fairness.  Hopefully, this essay has made a highly theoretical (and incredibly discrete topic, on a case-by-case basis) one that my reader understands a little better, as I do, after writing it.





[1] Weinreb, Lloyd. Leading Constitutional Cases on Criminal Justice, Chapter headings for “Due Process” begins with these cases.

[2] Palko v. Connecticut, 302 U.S. 319, 58 S. Ct 149 (1937)

[3] See FN 1 Palko v Connecticut, 302 U.S. 319, 58 S. Ct 149 (1937) citing Sec. 6494 Appeals by the state in criminal cases.

[4] Palko v Connecticut, 302 U.S. 319, 58 S. Ct 149 (1937)

[5] The Fourteenth Amendment reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny any person within its jurisdiction the equal protection of the laws.”

[6] Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672 (1947)

[7] Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672 (1947) citing Twinings v. New Jersey, 211 U.S. 78, 99-114; and citing Palko v. Connecticut, 302 U.S. 319, 323 (1937).

[8] Duncan v. Louisiana, 391 U.S. 145 (1968) citing Powell v. Alabama, 297 U.S. 45, 67 (1932).

[9] Duncan v. Louisiana, 391 U.S. 145 (1968)

[10] Rochin v. California, 342 U.S. 165 (1952)

[11] Palko v. Connecticut, 302 U.S. 319, 323 (1937)

[12] Rochin v. California, 342 U.S. 165 (1952)

[13] Id.

[14] Duncan v. Louisiana, 391 U.S. 145 (1968) citing Gideon v. Wainwright, 372 U.S. 335 (1963)

[15] Griswold v. Connecticut, 381 U.S. 479 (1965)

[16] Duncan v. Louisiana, 391 U.S. 145 (1968)

[17] Rochin v. California, 342 U.S. 165 (1952)

[18] Palko v. Connecticut, 302 U.S. 319, 323 (1937)

[19] Id.

[20] Id.

[21] Id.

[22] Griswold v. Connecticut, 381 U.S. 479 (1965)

[23] Duncan v. Louisiana, 391 U.S. 145 (1968)

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.


2 thoughts on “What Exactly is Due Process?

  1. Right to trial by jury. Everyone wants to limit due process to defendants they might like or agree with. People want to fuck over due process if the crime is regarded as particularly heinous or the criminals identity contains variables that are not liked. Reading these installments on your blog is like reading a playover of a game of chess – and as I’m a chess obsessed person (who no longer plays the game) I think one could find reading these articles quite addictive.


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