The Passing of the Alibi


WE are to-day in a testing period for democracies throughout the world. The Fascist states boast of their success in extirpating crime and establishing order. It has been done, but at an enormous cost to liberty. We face the challenge to produce and maintain, without such sacrifice, an ordered liberty in which the rights of the law-abiding are preserved and maintained, and crime both punished and repressed. It is a challenge which must be met by our criminal law, and mainly by improvement in the machinery of the laws of our states.

In most of our American states we have been very slow in doing anything fundamental in the improvement of our criminal law. Racketeering flourishes; lawlessness goes undetected and unpunished. Our law-enforcing agencies are compelled to meet with a blunderbuss the high-powered weapons of the gangster.

One reason why basic changes in the American criminal law to meet lawlessness have been so slow is that we suffer from a complex — largely a lawyer-made complex, which it is important that the layman should understand.

We have been led to believe, for example, that it would be impossible for us to do what England has done so successfully in completely modernizing her criminal jurisprudence thirty years ago; that there are constitutional limitations, state and national, which make such fundamental changes impossible for us.

We imagine ourselves to be confronted with constitutional hurdles and barriers of a quite insurmountable character. We approach any real reform in criminal law with the same apprehension with which a doctor approaches a major operation. We see a long line of constitutional arteries likely to be cut unless we are abnormally careful — or do nothing.

The first ten Amendments in our Federal Constitution were, as every schoolboy knows, adopted because our forefathers were worried lest our new national government should turn out to be a despotism. These Amendments were part of an effort to provide against such a development. Perhaps our forefathers were right. We are still worried about the subject, and with plenty of new reasons, but that is quite a different story.

What our forefathers did was to specify in those Amendments a long series of things which the new Federal Government should not do. Through them we guaranteed ourselves, for example, that the new government should not take from us freedom of speech and the press, the right of assembly or of religious freedom; we required jury trials in the Federal Courts, and the like. These limitations were for the most part an embodiment of the ancient Bill of Rights wrested by the English people in the seventeenth century from the Stuart kings, and they are effective limitations to-day on our federal lawmaking power.

They were not, however, limitations upon the states or upon state lawmakers at the time they were enacted. But after the Civil War came the Fourteenth Amendment, which declared that no state could ‘deprive any person of life, liberty, or property without due process of law.’ Then arose a new set of judicial questions. Were the ancient limitations upon federal legislation in the first ten Amendments now made limitations upon the states as well? What do these very general terms ‘life, liberty, and property’ and ‘due process of law’ mean.?

We have had for three generations a wilderness of decisions over them. To my own profession the mystic meaning of these beautiful words has been a continuous gold mine during all these happy years. It is still an alluring field for study by elderly lawyers who are interested in judicial learning and legal history, and not very much in progress. It is particularly dull reading for the layman. One aspect of the matter does interest him, however, and that most vitally. How much of a real handicap on progress in criminal-law reform is contained in these Amendments to the Constitution? Have they put us in a seventeenth-century strait jacket, or not?

A recent decision of our United States Supreme Court gives illuminating and encouraging answers to these questions. It deals with an interesting subject — the finality, so far as the state is concerned, of verdicts of juries in criminal cases. It considers this question, moreover, in an opinion which should serve to dispel the last of our doubts about our power as states to deal directly and effectively with crime — if we want to. If we do not wish to do it, that, of course, is another matter. But the ancient alibi that the Federal Constitution and the Supreme Court won’t let us meet modern conditions with modern weapons is once more shown to be a worthless excuse for inaction.

This, I think, is fairly important. It is exceedingly desirable to encourage the layman to enter the field of criminallaw reform by removing the taboo of constitutional mystery so long in vogue. Leaving criminal-law reform to lawyers is neither necessary nor in the public interest, as English experience has so clearly shown. The water is fine, there are no sharks, and the layman should know it.


The background of the case I am about to consider is this: there is no appeal possible, under the law as it stands in almost all American states, from a verdict of ‘Not guilty.’ The trial judge may have erred grossly in his charge by misstatements of law. He may have permitted a latitude to the prisoner’s counsel in the injection of irrelevant and sympathy-provoking evidence prejudicial in the highest degree to justice. The rights of organized society interested in justice by law may have been outraged. But when a jury, misdirected as to the law, misled by the skillful injection of false issues by adroit counsel for the guilty, has brought in its verdict in the defendant’s favor, he goes free. The outraged ideal of justice suffers, but is helpless.

It suffers largely, as I have said, because of the popular supposition that it is impossible under our constitutional law ever to permit the state itself to appeal from the verdict of a jury in a criminal case for any reason whatsoever. The basis for this supposition is the socalled rule against double jeopardy, an old principle of the common law which Blackstone set out in his Commentaries when he said: ‘No man is to be brought into jeopardy of his life more than once for the same offense.’ One of the Amendments to the Constitution to which I have referred expresses this principle almost in Blackstone’s language: ‘nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.’

It has been generally thought that to permit an appeal by the state against errors in law injurious to justice — if it resulted in a reversal and a new trial, as in a civil case — would in effect be subjecting a defendant to double jeopardy; hence the ordinary American rule that the state must take the verdict of the jury as final. The defendant may appeal against the verdict which convicts him; the state may not appeal against the false verdict which acquits him.

In practically all of our American states this rule produces the same effect. Under it the criminal lawyer has one and only one objective; if he attains it his success is certain. It is the right answer to the question of the clerk of the court when he asks the foreman of the jury for its verdict. The gross buffoonery, the charlatanism, the false atmosphere which pervades so many of our criminal trials, are due in large part to this simple fact.

No competent lawyer for a party to any civil suit would ever permit himself to do things in the course of a trial which the criminal lawyer does every day. The civil lawyer would be foolish if he did so, because a civil-jury verdict, after a trial full of reversible error, only awaits the action of an appellate court for its correction — the inevitable new trial.

The reason why our laws allow no appeal for the injured people of the state and place this handicap on justice to its law-abiding citizens lies, as I have said, in the so-called double-jeopardy rule and the constitutional provisions prohibiting a man from being placed in jeopardy by a retrial even if the original trial was conducted in gross violation of the law.


So much by way of preface to the case of Palko v. State of Connecticut, which the United States Supreme Court decided in December 1937 (302 U.S. 319). Under a law adopted in 1886, Connecticut is one of the few states of the Union which permit appeals by the state itself in criminal cases. The appeal is carefully limited to questions of law. It also requires the permission of the trial judge who tried the case. But with his consent the state has the same power to appeal from errors in law as has an ordinary litigant in civil actions.

Palko, it seems, had committed murder in Connecticut. On his first trial the court refused to permit the introduction of proof of a confession by him. It excluded testimony upon cross-examination of Palko himself tending to impeach his testimony. The court misdirected the jury as to the difference between first-degree and second-degree murder. Palko was accordingly found guilty of murder in the second degree, and given a life sentence. The District Attorney appealed, complaining against these errors.

The conviction was reversed in the Connecticut Supreme Court of Errors, and the indictment was sent back for a retrial. On the new trial Palko was convicted of murder in the first degree, and sentenced to death. Before a jury was impaneled his counsel placed on the record the objection that the effect of the new trial was to place Palko twice in jeopardy for the same offense and thus to violate the Fourteenth Amendment.

Before this important case was decided, there was excellent reason for Palko’s counsel to feel that he had the better end of the argument. While, as I have said, the Fifth Amendment of the Constitution, forbidding double jeopardy, is applicable only to trials in the federal courts, it is still necessary to consider the effect of the subsequent Fourteenth Amendment and its familiar language, ‘nor shall any State deprive any person of life, liberty, or property without due process of law.’ Was retrial under the same indictment, when the first trial had been grossly prejudicial to the interests of the state, in fact a second jeopardy, prohibited by due process of law? Was the state forbidden to deprive any of its citizens of this right not to be tried again? These were the questions to be answered by the highest court of the nation.

Time and again the courts of states other than Connecticut had held that appeals by the state could not exist in criminal cases; that to permit such appeals would be a violation of the double-jeopardy rule — a rule stated not only in the Federal Constitution but in the constitutions of most American states as well.

The happy accident which brought Palko’s case to the Supreme Court was that Connecticut had no provision in her own constitution against double jeopardy. Her own highest court approved the second conviction of Palko. The test to be applied to her statute which permitted, under safeguards, appeals by the state was the test of the United States Constitution alone. So here at last was presented to the bar of the Supreme Court this direct question: Does the Constitution of the United States prevent the state from giving to its own law authorities, engaged in the prevention and punishment of crime, power to appeal in criminal cases where injustice to peace and order have been done in their criminal courts?

The importance of the question the Supreme Court considered in Palko’s case will appear when one considers a practical aspect of the handicap which a constitutional question puts upon legislation. To illustrate, a generation ago American state courts had before them the legal problems arising out of the Workmen’s Compensation principle. Was this principle, which Asquith stated so pithily, — ‘ the blood of the workman should be part of the cost, of the product,’

— one which violated the United States Constitution, or was it one which violated state constitutions alone? New York, for example, found that her first statute on Workmen’s Compensation was, according to her Court of Appeals, a violation of her own constitution. She promptly changed her constitution to make the legislation effective. If the United States Supreme Court had held

— as it did not — that the principle also violated the due-process-of-law clause in the Federal Constitution, there would have remained the long task of procuring an amendment to the Constitution, which might have taken a generation.


This Connecticut murderer’s case is the first ever to reach the United States Supreme Court requiring consideration of the law of an American state permitting appeals by the state in criminal cases. It involves, as I have said, a test of a statute which permits such appeals by the standard of the Constitution of the United States alone. If the Constitution does not contain this handicap against such appeals, the way is left open for American states to adopt their own legal machinery by which such appeals may be made, the atmosphere of criminal trials changed, the rights of law-abiding people maintained against the inroads of crime.

It happens to be one of the last opinions rendered by Justice Cardozo, written in that extraordinarily luminous English with which this Rembrandt of judicial statement expressed the logic of justice. The Court reaches its conclusions by a process of reasoning exceedingly broad in its scope, shedding a new light upon an aspect of our constitutional law on which literally thousands of judicial decisions have been rendered — the perpetual question of the meaning of these general terms, life, liberty, and property, which the Fourteenth Amendment tells us no state can take from us without due process of law. It enlarges very materially the power of the states to improve their systems of criminal law, relieved from the fear of unconstitutionality under the Federal Constitution.

How many of these prohibitions against federal law in the first ten Amendments are, the Court asks itself, attributes of life, liberty, and property which cannot now be taken away but must be recognized under the Fourteenth Amendment, adopted after the Civil War, as binding on the states as well, and which prevent state legislation? Are they all of the same essential character? Are they all, equally, prohibitions against legislation by the states? What is the test to be applied in determining these questions?

The Court reviews prior decisions passed upon some of the provisions of these Amendments constituting the Federal Bill of Rights. The Fifth Amendment, for example, provides that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury. The Court had previously held that, in prosecutions by a state, presentment or indictment by a grand jury may give way to informations at the instance of a public officer.

In the same way, by prior decisions, the Supreme Court ruled that trial by jury may be modified by a state or abolished altogether. The test which the Court now applies in Palko’s case is to determine what rights constitute ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.’ These are the rights, the Court declares, which may not be destroyed or impaired by the states. Justice Cardozo says: —

On which side of the line the case made out by the appellant has appropriate location must be the next inquiry and the final one. Is that kind of double jeopardy to which the statute has subjected him a hardship so acute and shocking that our polity will not endure it? Does it violate those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions’? The answer surely must be ‘no.’ What the answer would have to be if the state were permitted after a trial free from error to try the accused over again or to bring another case against him we have no occasion to consider. We deal with the statute before us and no other. The state is not attempting to wear the accused out by a multitude of cases with accumulated trials. It 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. This is not cruelty at all, nor even vexation in any immoderate degree. If the trial had been infected with error adverse to the accused there might have been review at his instance, and as often as necessary to purge the vicious taint. A reciprocal privilege, subject at all times to the discretion of the presiding judge, has now been granted to the state. There is here no seismic innovation. The edifice of justice stands, its symmetry, to many, greater than before.

The Palko case is not important merely because the right of the state to appeal in criminal cases is in itself a supremely important matter. It is mainly important for the reasoning by which that right is sustained, because it so clearly indicates the existence of the reservoir of unused power in our American states to create, if they wish, laws needed for order in a world which is putting new tests upon the efficiency of democracy.1


Here, for example, is what the Court has to say about something else, another American complex — the immunity from compulsory self-incrimination, that refuge of silence which follows the formula so familiar to the hard-pressed in criminal trials: ’I decline to answer on the ground that it tends to incriminate or degrade me.’

Indirectly the effectiveness of this formula was successfully overcome years ago when the United States Supreme Court declared that there was no constitutional objection to a ruling in New Jersey under which, for example, its courts have held that the failure of a defendant to take the stand in his own behalf might be commented on by the trial judge in his charge. Such comment has been expressly forbidden in many states, the theory being that any such comment would violate the presumption of innocence which clothes the defendant throughout the whole period of his trial and requires that his guilt must be proved beyond a reasonable doubt. It is a somewhat metaphysical distinction, to say the least. It is urged by criminal lawyers that to permit such comment would have a tendency to make the defendant take the stand in his own behalf and thereby perhaps incriminate himself.

Tenderness to the accused could scarcely go much further, but how valuable the right of silence is to the accused may be questioned. Common sense is difficult to eliminate entirely from criminal trials. The fact that a defendant does not tell his own story seems ineradicably suspicious to the average juror when he comes to weigh the problem of guilt or innocence.

In the Palko case the Supreme Court, speaking of immunity from compulsory incrimination, says: —

This too might be lost, and justice still be done. Indeed, to-day as in the past there are students of our penal system who look upon the immunity as a mischief rather than a benefit, and who would limit its scope or destroy it altogether. No doubt there would remain the need to give protection against torture, physical or mental. Justice, however, would not perish if the accused were subject to a duty to respond to orderly inquiry.

Let us consider for a moment the startling last, sentence from this quotation. As all students of criminal law know, orderly investigation by magistrates of the facts and circumstances of crime, including persons under suspicion who have to answer questions, is part of the established procedure in the law of continental Europe. Having no corresponding system, we use in America a lawless substitute for it, the third degree, a purely American term describing a continual disgrace to our jurisprudence. Time and again our courts have had to consider this lawless and cruel substitute for that orderly investigation of the facts concerning the commission of crimes which a rational system might make possible. It is one of the black spots in the practical workings of our criminal law, and has been there a long time. We sentimentalize about it, we preach against it, we make profitable movies and plays with the third degree as the enthralling theme; we do nothing else about it. The third degree is mainly a product of police incapacity, cruelty, and stupidity. As Sir James Fitzjames Stephen said years ago in his discussion of the proposed Indian Evidence Act: ’It is always easier to sit in the shade under a banyan tree and rub red pepper in some poor devil’s eyes than to go out into the hot sun looking for evidence.’

The lawless third degree, the proceedings in the back room of the police station, the stringing up of a terrified prisoner by the thumbs to induce a confession by torture, should, of course, stop. The lawless process succeeds only when the methods of confessional extortion are supplemented by perjury on the part of public officials. It will not stop by merely preaching against it. The door is now open to American states to consider and adopt, if they think it advisable, a lawful and orderly American system by which such examinations can be made under proper legal safeguards. The clear implication of the Palko decision is that such a system would be no violation of the Amendments to the Constitution.

What the dictators in the Fascist and Communist world may think about democracy is not important. What is important — and increasingly so, month by month — is what we think about it ourselves, and particularly what our thinking makes us walling to do in an increasingly lawless country to perfect the necessary basic machinery for law and order, and the prompt detection and punishment of crime, without which liberty tends to be a remote ideal rather than a living reality.

The survival of democracy itself may depend upon our answer.

  1. It is interesting to note that bills intended to tap this reservoir of unused power opened up by the Palko case are pending in the Legislature of New York at its present session, — AUTHOR