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[Cite as Adamson v. California, 332 U.S. 46, 78, 99, 100, 105, 109 n.3, 119, 124 (1947). NOTE: This decision concerns compelled testimony and whether the protections of the Fifth Amendment was made enforceable by the Fourteenth Amendment against state infringements. Dissenting from the Court's decision that it was not, Justice Black argued that all the bill of rights were made enforceable by the Fourteenth Amendment. Listing Supreme Court decisions withholding amendments Five, Six, Seven, and Eight from enforceability against states, Justice Black listed Presser (116 U.S. 252) and quoted the Second Amendment's clause "'right of the people to keep and bear arms...,'"(P. 78) In an Appendix, Justice Black quoted at length from the debates surrounding the Fourteenth Amendment and other acts of that era. An emphasis on arms or the right to arms appears in this Appendix five times (P. 99, 100, 105, 109 n.3, 119). Justice Murphy's dissent also advocated "that the specific guarantees of the Bill of Rights should be carried over intact into the first Section of the Fourteenth Amendment." (P. 124)]

[Adamson v. California continued
Return to pages 46-58 (Majority opinion).
Return to pages 59-67 (Frankfurter, concurrence).
Return to pages 68-77 (Black, dissent).
Return to pages 78 (Black, dissent cont.).
Return to pages 79-91 (Black, dissent cont.).
Return to pages 92-122 (Black, Appendix).
Currently at pages 123-125 (Murphy, dissent).]

[paragraph continued from previous page] to all such rights, places a limit upon state power by ordaining that no state shall make or enforce any law which shall abridge them. If I am right in this view, then every citizen of the United States is protected from punishments which are cruel and unusual. It is an immunity which belongs to him, against both state and Federal action. The State cannot apply to him, any more than the United States, the torture, the rack, or thumbscrew, or any cruel and unusual punishment, or any more than it can deny to him security in his house, papers, and effects against unreasonable searches and seizures, or compel him to be a witness against himself in a criminal prosecution. These rights, as those of citizens of the United States, find their recognition and guaranty against Federal action in the Constitution of the United States, and against state action in the Fourteenth Amendment. The inhibition by that amendment is not the less valuable and effective because of the prior and existing inhibition against such action in the constitutions of the several States...." O'Neil v. Vermont, supra, at 363.

Mr. Jusice Harlan, and apparently Mr. Justice Brewer, concurred in this phase of Mr. Justice Field's dissent. 144 U.S. at pages 366, 370, 371.

For further exposition of these views see also the vigorous dissenting opinions of Mr. Justice Harlan in Hurtado v. California, 110 U.S. 516, 538, and Maxwell v. Dow, 176 U.S. 581, 605, as well as his dissenting opinion in Twining v. New Jersey, 211 U.S. 78, 114.

Mr. Justice Murphy, with whom Mr. Justice Rutledge concurs, dissenting.

While in substantial agreement with the views of Mr. Justice Black, I have one reservation and one addition to make.(p.124)

I agree that the specific guarantees of the Bill of Rights should be carried over intact into the first section of the Fourteenth Amendment. But I am 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 constitutional condemnation in terms of a lack of due process despite the absence of a specific provision in the Bill of Rights.

That point, however, need not be pursued here inasmuch as the Fifth Amendment is explicit in its provision that no person shall be compelled in any criminal case to be a witness against himself. That provision, as Mr. Justice Black demonstrates, is a constitutent part of the Fourteenth Amendment.

Moreover, it is my belief that this guarantee against self-incrimination has been violated in this case. Under California law, the judge or prosecutor may comment on the failure of the defendant in a criminal trial to explain or deny any evidence or facts introduced against him. As interpreted and applied in this case, such a provision compels a defendant to be a witness against himself in one of two ways:

1. If he does not take the stand, his silence is used as the basis for drawing unfavorable inferences against him as to matters which he might reasonably be expected to explain. Thus he is compelled, through his silence, to testify against himself. And silence can be as effective in this situation as oral statements.

2. If he does take the stand, thereby opening himself to cross-examination, so as to overcome the effects of the provision in question, he is necessarily compelled to testify against himself. In that case, his testimony on cross-examination is the result of the coercive pressure of the provision rather than his own volition.(p.125)

Much can be said pro and con as to the desiability of allowing comment on the failure of the accused to testify. But policy arguments are to no avail in the face of a clear constitutional command. This guarantee of freedom from self-incrimination is grounded on a deep respect for those who might prefer to remain silent before their accusers. To borrow language from Wilson v. United States, 149 U.S. 60, 66: "It is not every one who can safely venture on the witness stand, though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offenses charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not every one, however honest, who would therefore willingly be placed on the witness stand."

We are obliged to give effect to the principle of freedom from self-incrimination. That principle is as applicable where the compelled testimony is in the form of silence as where it is composed of oral statements. Accordingly, I would reverse the judgment below.

[Return to pages 46-58 (Majority opinion).
Return to pages 59-67 (Frankfurter, concurrence).
Return to pages 68-77 (Black, dissent).
Return to pages 78 (Black, dissent cont.).
Return to pages 79-91 (Black, dissent cont.).
Return to pages 92-122 (Black, Appendix).
Currently at pages 123-125 (Murphy, dissent).]