Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937).
Facts: Palko was indicted for the crime of first degree murder, but at trial the jury found him guilty of second degree murder and he was sentenced to life in prison. The state of Connecticut appealed the ruling pursuant to a state statute that allowed appeals in criminal cases. The Supreme Court of Errors reversed the judgment and the state was granted a new trial. This time the jury found him guilty of murder in the first degree and he was sentenced to death.
Issue(s): Does a state law allowing the state to appeal questions of law, with the permission of a trial judge, after a jury verdict, and re-try a defendant violate the 14th amendment of the US Constitution?
Holding: No. The Supreme Court held that protection against double jeopardy as guaranteed by the 5th amendment is not a fundamental right and is not incorporated to the states via the 14th amendment.
Majority Rational: Justice Cardozo, who authored the majority opinion, held that there are certain fundamental rights that have been absorbed in the 14th amendment. Such rights include (1) freedom of speech (2) freedom of the press (3) free exercise of religion (4) right of peaceful assembly (5) right of one accused of a crime to have the benefit of counsel, as well as other rights not mentioned here. According to Cardozo, these rights are “fundamental to the scheme of ordered liberty” and have been applied to the states through the due process clause of the 14th amendment. He further notes that if this case had been tried by the federal government, than the protection against double jeopardy would apply. However, since it was tried on behalf of the people of a state, and double jeopardy is not a fundamental right, it need not apply.