The Constitution of the United States of America: Analysis and Interpretation Part 208

[902] Adamson _v._ California, 332 U.S. 46, 69, 74-75, 89 (1947).--Dissenting separately, Justice Murphy, together with Justice Rutledge, announced their agreement with Justice Black, subject to one reservation. While agreeing "that the specific guarantees of the Bill of Rights should be carried over intact into the first section of the Fourteenth Amendment," they were "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 * * * condemnation in terms of a lack of due process despite the absence of a specific provision in the Bill of Rights."--Ibid. 124.

In a lengthy article based upon a painstaking examination of original data pertaining to the "understanding of the import of the * * * clauses of Section 1 of the Fourteenth Amendment at the time the Amendment was adopted"; that is, during the period 1866-1868, Professor Charles Fairman has marshalled a "mountain of evidence" calculated to prove conclusively the inaccuracy of Justice Black's reading of history.--Charles Fairman. Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding.--2 Stanford Law Review, 5-139 (1949).

[903] 332 U.S. 596 (1948).

[904] Ibid. 600-601.--In a dissenting opinion, in which Chief Justice Vinson and Justices Jackson and Reed concurred, Justice Burton remarked that inasmuch as the issue of the voluntariness of the confession was one of fact, turning largely on the credibility of witnesses, the determination thereof by the trial judge and jury should not be overturned upon mere conjecture.--Ibid. 607, 615.

[905] 332 U.S. 742, 745 (1948).

[906] 335 U.S. 252 (1948).

[907] The Court also held that the procedure of Alabama, in requiring the accused to obtain permission from an appellate court before filing a pet.i.tion in a trial court for a writ of error _coram n.o.bis_ was consistent with due process. Alabama was deemed to possess "ample machinery for correcting the Const.i.tutional wrong of which the * * *

[accused] complained."--Ibid. 254, 260-261.

[908] The accused, in his pet.i.tion, neither denied his guilt nor any of the acts on which his conviction was based. He simply contended that because of fear generated by coercive police methods applied to him, he had concealed such evidence from his own counsel at the time of the trial and had informed the latter that his confessions were voluntary.

His charges of duress were supported by affidavits of three a.s.sociates in crime, none of whom claims to have seen the alleged beatings of the pet.i.tioner.--Ibid. 265-266.

[909] In a dissenting opinion, in which Justices Douglas and Rutledge concurred, Justice Murphy maintained that inasmuch as there was some evidence to substantiate the pet.i.tioner's claim, the latter should have been allowed a hearing in the trial court. According to Justice Murphy, a conviction based on a coerced confession is "void even though the confession is in fact true" and the pet.i.tioner is guilty. Justice Frankfurter criticized this dissenting opinion as having been "written as though this Court was a court of criminal appeals for revision of convictions in the State courts."--Ibid. 272, 275-276.

[910] 338 U.S. 49 (1949).

[911] 338 U.S. 62, 64 (1949).

[912] 338 U.S. 68 (1949).

[913] Watts _v._ Indiana, 338 U.S. 49, 53 (1949).

[914] 309 U.S. 227 (1940).

[915] 322 U.S. 143 (1944).

[916] Watts _v._ Indiana, 338 U.S. 49, 57 (1949); citing Malinski _v._ New York, 324 U.S. 401 (1945); Haley _v._ Ohio, 332 U.S. 596 (1948).

[917] 338 U.S. 49, 60 (1949).

[918] 338 U.S. 62 (1949).

[919] 338 U.S. 68 (1949).

[920] 338 U.S. 49, 61 (1949). In the 1949, 1950, and 1951 terms only one case arose which involved the forced confession issue in any significant way. This was Rochin _v._ California, 342 U.S. 165 (1952), which is discussed immediately below in another connection. _See also_ Jennings _v._ Illinois, 342 U.S. 104 (1951); and Stroble _v._ California, 343 U.S. 181 (1952), in which diverse, but not necessarily conflicting, results were reached.

[921] 232 U.S. 58 (1914).

[922] Consolidated Rendering Co. _v._ Vermont, 207 U.S. 541, 552 (1908); Hammond Packing Co. _v._ Arkansas, 212 U.S. 322, 348 (1909).

[923] Wolf _v._ Colorado, 338 U.S. 25 (1949).

[924] 332 U.S. 46 (1947).

[925] 302 U.S. 319 (1937).

[926] 338 U.S. 25, 27-28 (1949).

[927] Ibid. 28-31.--In harmony with his views, as previously stated in Malinski _v._ New York, 324 U.S. 401 (1945) and Adamson _v._ California, 332 U.S. 46, 59-66 (1947), Justice Frankfurter amplified his appraisal of the due process clause as follows: "Due process of law * * * conveys neither formal nor fixed nor narrow requirements. It is the compendius expression for all those rights which the courts must enforce because they are basic to our free society. But basic rights do not become petrified as of any one time, even though, as a matter of human experience, some may not too rhetorically be called eternal verities. It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits of the essentials of fundamental rights. To rely on a tidy formula for the easy determination of what is a fundamental right for purposes of legal enforcement may satisfy a longing for certainty but ignores the movements of a free society. * * * The real clue to the problem confronting the judiciary in the application of the Due Process Clause is not to ask where the line is once and for all to be drawn but to recognize that it is for the Court to draw it by the gradual and empiric process of 'inclusion and exclusion.'"--Ibid. 27.

[928] 332 U.S. 46, 68, 71-72 (1947).

[929] Wolf _v._ Colorado, 338 U.S. 25, 39-40 (1949).

[930] Ibid. 40, 41, 44, 46, 47.

[931] Stefanelli _v._ Minard, 342 U.S. 117 (1951); Rochin _v._ California, 342 U.S. 165 (1952).

[932] 342 U.S. 117, 123.

[933] 342 U.S. 105, 168, citing Malinski _v._ New York, 324 U.S. 401, 412, 418 (1945).

[934] Ibid., 174.

[935] 332 U.S. 46, 68-123 (1947). "Of course", said Justice Douglas, citing Holt _v._ United States, 218 U.S. 245, 252-253 (1910), "an accused can be compelled to be present at the trial, to stand, to sit, to turn this way or that, and to try on a cap or a coat." 342 U.S. at 179. _See_ the Self-incrimination Clause of Amendment V.

[936] Mooney _v._ Holohan, 294 U.S. 103, 112 (1935).

[937] Ibid. 110.--Because judicial process adequate to correct this alleged wrong was believed to exist in California and had not been fully invoked by Mooney, the Court denied his pet.i.tion. Subsequently, a California court appraised the evidence offered by Mooney and ruled that his allegations had not been established.--Ex parte Mooney, 10 Cal. (2d) 1, 73 P (2d) 554 (1937); certiorari denied, 305 U.S. 598 (1938). Mooney later was pardoned by Governor Olson.--New York Times, January 8, 1939.

[938] 315 U.S. 411 (1942).

[939] 317 U.S. 213 (1942).

[940] 324 U.S. 760 (1945). _See also_ New York ex rel. Whitman _v._ Wilson, 318 U.S. 688 (1943); Ex parte Hawk, 321 U.S. 114 (1944).

[941] 315 U.S. 411, 413, 421-422 (1942).--Justice Black, together with Justices Douglas and Murphy, dissented on the ground that the Florida court, "with intimations of approval" by the majority, had never found it necessary to pa.s.s on the credibility of Hysler's allegations, but had erroneously declared that all his allegations, even if true and fully known to the trial court, would not have precluded a conviction.

In an earlier case, Lisenba _v._ California, 314 U.S. 219 (1941), the Court, without discussion of this principle relating to the use of perjured testimony, sustained a California appellate court's denial of a pet.i.tion for _habeas corpus_. The accused, after having been convicted and sentenced to death for murder, filed his pet.i.tion supported by affidavits of a codefendant, who, after pleading guilty and serving as a witness for the State had received a life sentence. The latter affirmed that his testimony at the trial of the pet.i.tioner "was obtained by deceit, fraud, collusion, and coercion, and was known to the prosecutor to be false." Even though the California court had denied the pet.i.tion for _habeas corpus_ without taking oral evidence and without requiring the State to answer, the Supreme Court upheld this action on the ground that there was no adequate showing of a corrupt bargain between the prosecution and the codefendant and that the appraisal of conflicting evidence was for the Court below. Even if latter's refusal to believe the codefendant's depositions were erroneous, such error, the Court added, would not amount to a denial of due process.

[942] 317 U.S. 213, 216 (1942).

[943] 324 U.S. 760 (1945). Certiorari was denied, however, for the reason that the State court's refusal to issue the writ of _habeas corpus_ was based upon an adequate nonfederal ground.

[944] Schwab _v._ Berggren, 143 U.S. 442, 448 (1802).--This statement is a dictum, however; for the issue presented by the accused's pet.i.tion for a writ of _habeas corpus_ was that the State appellate court had denied him due process in ruling on his appeal from his conviction in the absence of both the pet.i.tioner and his counsel and without notice to either as to the date of its decision. Insofar as a right to be present exists, its application, the Supreme Court maintained, is limited to courts of original jurisdiction trying criminal cases.

[945] Howard _v._ Kentucky, 200 U.S. 164 (1906).

[946] 201 U.S. 123, 130 (1906).

[947] 237 U.S. 309, 343 (1915).

[948] Snyder _v._ Ma.s.sachusetts, 291 U.S. 97 (1934).