Palko v. Connecticut 1937

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Palko v. Connecticut 1937

Appellant: Frank Palko

Appellee: State of Connecticut

Appellant's Claim: That when Connecticut tried him a second time for murder, it violated the Double Jeopardy Clause of the Fifth Amendment.

Chief Lawyers for Appellant: David Goldstein and George A. Saden

Chief Lawyer for Appellee: William H. Comley

Justices for the Court: Hugo Lafayette Black, Louis D. Brandeis, Benjamin N. Cardozo, Charles Evans Hughes, James Clark McReynolds, Owen Josephus Roberts, Harlan Fiske Stone, George Sutherland

Justices Dissenting: Pierce Butler

Date of Decision: December 6, 1937

Decision: The Supreme Court affirmed Palko's second conviction for murder.

Significance: With Palko, the Supreme Court said the Bill of Rights does not automatically apply to the states. It took many cases over the next few decades for the Court to reverse this decision and apply most of the Bill of Rights to the states.

The Fifth Amendment of the U.S. Constitution says no person "shall . . . be twice put in jeopardy of life and limb" for the same crime. This is called the Double Jeopardy Clause. It prevents the federal government from trying or punishing a person twice for the same crime.

The Fifth Amendment is part of the Bill of Rights, which contains the first ten amendment to the Constitution. The United States adopted the Bill of Rights in 1791 to give American citizens rights against the federal government. State and local governments did not have to obey the Bill of Rights.

In 1868, after the American Civil War, the United States adopted the Fourteenth Amendment. The Fourteenth Amendment contains a phrase called the Due Process Clause. It says states may not "deprive any person of life, liberty, or property, without due process of law." Ever since 1868, the Supreme Court has struggled to define what is meant by "due process of law." In Palko v. Connecticut (1937), the Supreme Court had to decide whether "due process of law" means states must obey the Double Jeopardy Clause of the Fifth Amendment.


Frank Palko was charged with first degree murder in Fairfield County, Connecticut, where he could get the death penalty. The jury found Palko guilty of second degree murder, a lesser crime that was punishable only with imprisonment. The court sentenced Palko to life in prison. A state law, however, allowed Connecticut to appeal the decision in a criminal case if there were errors during the trial. Connecticut appealed Palko's conviction.

The Supreme Court of Errors decided the trial judge made three errors during Palko's trial. The judge had refused to allow the jury to hear testimony about Palko's confession. He also refused to allow Connecticut to cross-examine Palko to impeach Palko's credibility, which means to challenge his truthfulness and believability. Finally, the trial judge erred when he instructed the jury about the difference between first and second degree murder. Based on these errors, the Supreme Court of Errors reversed Palko's conviction and ordered a new trial.

At the second trial, the jury found Palko guilty of first degree murder and the court sentenced him to death. Palko appealed his conviction. He said trying him twice for the same murder violated the Double Jeopardy Clause of the Fifth Amendment. Palko argued that the Due Process Clause of the Fourteenth Amendment required Connecticut to obey the entire Bill of Rights, including the Double Jeopardy Clause. The Connecticut Supreme Court of Errors rejected this argument and affirmed Palko's conviction, so he took his case to the U.S. Supreme Court.

Fundamental Justice

With an 8–1 decision, the Supreme Court affirmed Palko's conviction and death sentence. Writing for the Court, Justice Benjamin N. Cardozo rejected the argument that the Due Process Clause requires the states to obey the entire Bill of Rights. Cardozo said states only must obey those parts of the Bill of Rights that are fundamental. A right is fundamental when a system of justice would not be fair without it.

Cardozo said the First Amendment freedom of speech and the Sixth Amendment right to a jury trial in criminal cases are examples of fundamental rights. Without them, a fair system of justice would be impossible. In contrast, the Seventh Amendment right to jury a trial in civil cases—cases between private citizens—is not fundamental. A person cannot lose his life or freedom in a civil case.

The Supreme Court decided that in Palko's case, the rights under the Double Jeopardy Clause were not fundamental. Connecticut retried Palko because his first trial had serious errors. Defendants are allowed to get retrials when their first trials have errors. Cardozo said it made the system more fair to give both defendants and states the right to have error free trials.


Thirty-two years later, the Supreme Court overturned Palko in Benton v. Maryland (1969). By then, the Supreme Court had decided that the Due Process Clause requires states to obey most of the Bill of Rights.


T he Supreme Court overturned Palko in Benton v. Maryland (1969). In 1965, a jury in Maryland found John Benton guilty of burglary but not guilty of larceny. Afterwards, the Maryland Court of Appeals struck down a law that required jurors to swear to their belief in God. Maryland then gave Benton the chance to have a second trial. At that trial, the jury found Benton guilty of both larceny and burglary.

Benton took the case to the U.S. Supreme Court, arguing that two trials violated the Double Jeopardy Clause. The Supreme Court agreed and reversed Benton's larceny conviction. The Court overruled Palko, saying it no longer accepted the idea that the Fourteenth Amendment applied only a "watered down" version of the Bill of Rights to the states. After Benton, states must obey the Double Jeopardy Clause.

Suggestions for further reading

Galloway, John. The Supreme Court & the Rights of the Accused. New York: Facts on File, 1973.

Holmes, Burnham. The Fifth Amendment. Silver Burdett Press, 1991.

Johnson, Joan. Justice. New York: Franklin Watts, 1985.

Krull, Kathleen. A Kids' Guide to America's Bill of Rights: Curfews, Censorship, and the 100-Pound Giant. Avon Books, 1999.

Mikula, Mark, and L. Mpho Mabunda. Great American Court Cases. Detroit: The Gale Group, 1999.

Stein, Richard Conrad. The Bill of Rights. Children's Press, 1994.