Petitioner was arrested and brought before a state judge for
preliminary hearing on a robbery charge. The complaining witness
testified but petitioner, who had no counsel, did not
cross-examine. Petitioner was later indicted and tried. The witness
had moved to another State, and the transcript of his testimony at
the hearing was introduced over petitioner's objections that he was
denied the right of confrontation. He was convicted and the highest
state court affirmed.
Held:
1. The right granted to an accused by the Sixth Amendment to
confront the witnesses against him, which includes the right of
cross-examination, is a fundamental right essential to a fair trial
and is made obligatory on the States by the Fourteenth Amendment.
Pp.
380 U. S.
403-406.
2. The introduction of the transcript in a federal criminal case
would have been a clear denial of the right of confrontation, since
the statement was made without an adequate opportunity for
cross-examination, and the right must be determined by the same
standards in a state proceeding. Pp.
380 U. S.
406-408.
375
S.W.2d 293, reversed and remanded.
MR. JUSTICE BLACK delivered the opinion of the Court.
The Sixth Amendment provides in part that:
"In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses
Page 380 U. S. 401
against him . . . and to have the Assistance of Counsel for his
defence."
Two years ago, in
Gideon v. Wainwright, 372 U.
S. 335, we held that the Fourteenth Amendment makes the
Sixth Amendment's guarantee of right to counsel obligatory upon the
States. The question we find necessary to decide in this case is
whether the Amendment's guarantee of a defendant's right "to be
confronted with the witnesses against him," which has been held to
include the right to cross-examine those witnesses, is also made
applicable to the States by the Fourteenth Amendment.
The petitioner Pointer and one Dillard were arrested in Texas
and taken before a state judge for a preliminary hearing (in Texas,
called the "examining trial") on a charge of having robbed Kenneth
W. Phillips of $375 "by assault, or violence, or by putting in fear
of life or bodily injury," in violation of Texas Penal Code Art.
1408. At this hearing, an Assistant District Attorney conducted the
prosecution and examined witnesses, but neither of the defendants,
both of whom were laymen, had a lawyer. Phillips, as chief witness
for the State, gave his version of the alleged robbery in detail,
identifying petitioner as the man who had robbed him at gunpoint.
Apparently Dillard tried to cross-examine Phillips, but Pointer did
not, although Pointer was said to have tried to cross-examine some
other witnesses at the hearing. Petitioner was subsequently
indicted on a charge of having committed the robbery. Some time
before the trial was held, Phillips moved to California. After
putting in evidence to show that Phillips had moved and did not
intend to return to Texas, the State at the trial offered the
transcript of Phillips' testimony given at the preliminary hearing
as evidence against petitioner. Petitioner's counsel immediately
objected to introduction of the transcript, stating, "Your Honor,
we will object to that, as it is a denial of the confrontment of
the witnesses against the Defendant."
Page 380 U. S. 402
Similar objections were repeatedly made by petitioner's counsel,
but were overruled by the trial judge, apparently in part because,
as the judge viewed it, petitioner had been present at the
preliminary hearing, and therefore had been "accorded the
opportunity of cross-examining the witnesses there against him."
The Texas Court of Criminal Appeals, the highest state court to
which the case could be taken, affirmed petitioner's conviction,
rejecting his contention that use of the transcript to convict him
denied him rights guaranteed by the Sixth and Fourteenth
Amendments.
375
S.W.2d 293. We granted certiorari to consider the important
constitutional question the case involves. 379 U.S. 815.
In this Court, we do not find it necessary to decide one aspect
of the question petitioner raises, that is, whether failure to
appoint counsel to represent him at the preliminary hearing
unconstitutionally denied him the assistance of counsel within the
meaning of
Gideon v. Wainwright, supra. In making that
argument, petitioner relies mainly on
White v. Maryland,
373 U. S. 59, in
which this Court reversed a conviction based in part upon evidence
that the defendant had pleaded guilty to the crime at a preliminary
hearing, where he was without counsel. Since the preliminary
hearing there, as in
Hamilton v. Alabama, 368 U. S.
52, was one in which pleas to the charge could be made,
we held in
White, as in
Hamilton, that a
preliminary proceeding of that nature was so critical a stage in
the prosecution that a defendant at that point was entitled to
counsel. But the State informs us that, at a Texas preliminary
hearing, such as is involved here, pleas of guilty or not guilty
are not accepted, and that the judge decides only whether the
accused should be bound over to the grand jury, and, if so, whether
he should be admitted to bail. Because of these significant
differences in the procedures of the respective States, we cannot
say that the
White case is necessarily controlling
Page 380 U. S. 403
as to the right to counsel. Whether there might be other
circumstances making this Texas preliminary hearing so critical to
the defendant as to call for appointment of counsel at that stage
we need not decide on this record, and that question we reserve. In
this case, the objections and arguments in the trial court, as well
as the arguments in the Court of Criminal Appeals and before us,
make it clear that petitioner's objection is based not so much on
the fact that he had no lawyer when Phillips made his statement at
the preliminary hearing as on the fact that use of the transcript
of that statement at the trial denied petitioner any opportunity to
have the benefit of counsel's cross-examination of the principal
witness against him. It is that latter question which we decide
here.
I
The Sixth Amendment is a part of what is called our Bill of
Rights. In
Gideon v. Wainwright, supra, in which this
Court held that the Sixth Amendment's right to the assistance of
counsel is obligatory upon the States, we did so on the ground
that
"a provision of the Bill of Rights which is 'fundamental and
essential to a fair trial' is made obligatory upon the States by
the Fourteenth Amendment."
372 U.S. at
372 U. S. 342.
And last Term, in
Malloy v. Hogan, 378 U. S.
1, in holding that the Fifth Amendment's guarantee
against self-incrimination was made applicable to the States by the
Fourteenth, we reiterated the holding of
Gideon that the
Sixth Amendment's right to counsel guarantee is "
a fundamental
right, essential to a fair trial,'" and "thus was made obligatory
on the States by the Fourteenth Amendment." 378 U.S. at
378 U. S. 6.
See also Murphy v. Waterfront Comm'n, 378 U. S.
52. We hold today that the Sixth Amendment's right of an
accused to confront the witnesses against him is likewise a
fundamental right, and is made obligatory on the States by the
Fourteenth Amendment
Page 380 U. S. 404
It cannot seriously be doubted at this late date that the right
of cross-examination is included in the right of an accused in a
criminal case to confront the witnesses against him. And probably
no one, certainly no one experienced in the trial of lawsuits,
would deny the value of cross-examination in exposing falsehood and
bringing out the truth in the trial of a criminal case.
See,
e.g., 5 Wigmore, Evidence § 1367 (3d ed.1940). The fact that
this right appears in the Sixth Amendment of our Bill of Rights
reflects the belief of the Framers of those liberties and
safeguards that confrontation was a fundamental right essential to
a fair trial in a criminal prosecution. Moreover, the decisions of
this Court and other courts
* throughout the
years have constantly emphasized the necessity for
cross-examination as a protection for defendants in criminal cases.
This Court, in
Kirby v. United States, 174 U. S.
47,
174 U. S. 55,
174 U. S. 56,
referred to the right of confrontation as "[o]ne of the fundamental
guarantees of life and liberty," and
"a right long deemed so essential for the due protection of life
and liberty that it is guarded against legislative and judicial
action by provisions in the Constitution of the United States and
in the constitutions of most if not of all the States composing the
Union."
Mr. Justice Stone, writing for the Court in
Alford v. United
States, 282 U. S. 687,
282 U. S. 692,
declared that the right of cross-examination is "one of the
safeguards essential to a fair trial." And, in speaking of
confrontation and cross-examination, this Court said in
Greene
v. McElroy, 360 U. S. 474:
"They have ancient roots. They find expression in the Sixth
Amendment which provides that, in all
Page 380 U. S. 405
criminal cases the accused shall enjoy the right 'to be
confronted with the witnesses against him.' This Court has been
zealous to protect these rights from erosion."
360 U.S. at
360 U. S.
496-497 (footnote omitted). There are few subjects,
perhaps, upon which this Court and other courts have been more
nearly unanimous than in their expressions of belief that the right
of confrontation and cross-examination is an essential and
fundamental requirement for the kind of fair trial which is this
country's constitutional goal. Indeed, we have expressly declared
that to deprive an accused of the right to cross-examine the
witnesses against him is a denial of the Fourteenth Amendment's
guarantee of due process of law. In
In re Oliver,
333 U. S. 257,
this Court said:
"A person's right to reasonable notice of a charge against him,
and an opportunity to be heard in his defense -- a right to his day
in court -- are basic in our system of jurisprudence, and these
rights include, as a minimum, a right to examine the witnesses
against him, to offer testimony, and to be represented by
counsel."
333 U.S. at
333 U. S. 273
(footnote omitted). And earlier this Term, in
Turner v.
Louisiana, 379 U. S. 466,
379 U. S.
472-473, we held:
"In the constitutional sense, trial by jury in a criminal case
necessarily implies at the very least that the 'evidence developed'
against a defendant shall come from the witness stand in a public
courtroom where there is full judicial protection of the
defendant's right of confrontation, of cross-examination, and of
counsel."
Compare Willner v. Committee on Character &
Fitness, 373 U. S. 96,
373 U. S.
103-104.
Page 380 U. S. 406
We are aware that some cases, particularly
West v.
Louisiana, 194 U. S. 258,
194 U. S. 264,
have stated that the Sixth Amendment's right of confrontation does
not apply to trials in state courts, on the ground that the entire
Sixth Amendment does not so apply.
See also Stein v. New
York, 346 U. S. 156,
346 U. S.
195-196. But, of course, since
Gideon v. Wainwright,
supra, it no longer can broadly be said that the Sixth
Amendment does not apply to state courts. And, as this Court said
in
Malloy v. Hogan, supra,
"The Court has not hesitated to reexamine past decisions
according the Fourteenth Amendment a less central role in the
preservation of basic liberties than that which was contemplated by
its Framers when they added the Amendment to our constitutional
scheme."
378 U.S. at
378 U. S. 5. In
the light of
Gideon, Malloy, and other cases cited in
those opinions holding various provisions of the Bill of Rights
applicable to the States by virtue of the Fourteenth Amendment, the
statements made in
West and similar cases generally
declaring that the Sixth Amendment does not apply to the States can
no longer be regarded as the law. We hold that petitioner was
entitled to be tried in accordance with the protection of the
confrontation guarantee of the Sixth Amendment, and that that
guarantee, like the right against compelled self-incrimination,
is
"to be enforced against the States under the Fourteenth
Amendment according to the same standards that protect those
personal rights against federal encroachment."
Malloy v. Hogan, supra, 378 U.S. at
378 U. S. 10.
II
Under this Court's prior decisions, the Sixth Amendment's
guarantee of confrontation and cross-examination was unquestionably
denied petitioner in this case. As has been pointed out, a major
reason underlying the
Page 380 U. S. 407
constitutional confrontation rule is to give a defendant charged
with crime an opportunity to cross-examine the witnesses against
him.
See, e.g., Dowdell v. United States, 221 U.
S. 325,
221 U. S. 330;
Motes v. United States, 178 U. S. 458,
178 U. S. 474;
Kirby v. United States, 174 U. S. 47,
174 U. S. 55-56;
Mattox v. United States, 156 U. S. 237,
156 U. S.
242-243.
Cf. Hopt v. Utah, 110 U.
S. 574,
110 U. S. 581;
Queen v.
Hepburn, 7 Cranch 290,
11 U. S. 295.
This Court has recognized the admissibility against an accused of
dying declarations,
Mattox v. United States, 146 U.
S. 140,
146 U. S. 151,
and of testimony of a deceased witness who has testified at a
former trial,
Mattox v. United States, 156 U.
S. 237,
156 U. S.
240-244.
See also Dowdell v. United States,
supra, 221 U.S. at
221 U. S. 330;
Kirby v. United States, supra, 174 U.S. at
174 U. S. 61.
Nothing we hold here is to the contrary. The case before us would
be quite a different one had Phillips' statement been taken at a
full-fledged hearing at which petitioner had been represented by
counsel who had been given a complete and adequate opportunity to
cross-examine.
Compare Motes v. United States, supra, 178
U.S. at
178 U. S. 474.
There are other analogous situations which might not fall within
the scope of the constitutional rule requiring confrontation of
witnesses. The case before us, however, does not present any
situation like those mentioned above or others analogous to them.
Because the transcript of Phillips' statement offered against
petitioner at his trial had not been taken at a time and under
circumstances affording petitioner through counsel an adequate
opportunity to cross-examine Phillips, its introduction in a
federal court in a criminal case against Pointer would have
amounted to denial of the privilege of confrontation guaranteed by
the Sixth Amendment. Since we hold that the right of an accused to
be confronted with the witnesses against him must be determined by
the same standards whether the right is denied in a federal or
state proceeding,
Page 380 U. S. 408
it follows that use of the transcript to convict petitioner
denied him a constitutional right, and that his conviction must be
reversed.
Reversed and remanded.
MR. JUSTICE HARLAN, concurring in the result.
I agree that, in the circumstances the admission of the
statement in question deprived the petitioner of a right of
"confrontation" assured by the Fourteenth Amendment. I cannot
subscribe, however, to the constitutional reasoning of the
Court.
The Court holds that the right of confrontation guaranteed by
the Sixth Amendment in federal criminal trials is carried into
state criminal cases by the Fourteenth Amendment. This is another
step in the onward march of the long-since discredited
"incorporation" doctrine (
see, e.g., Fairman, Does the
Fourteenth Amendment Incorporate the Bill of Rights? The Original
Understanding, 2 Stan.L.Rev. 5 (1949); Frankfurter, Memorandum on
"Incorporation" of the Bill of Rights Into the Due Process Clause
of the Fourteenth Amendment, 78 Harv.L.Rev. 746 (1965)), which for
some reason that I have not yet been able to fathom has come into
the sunlight in recent years.
See, e.g., Mapp v. Ohio,
367 U. S. 643;
Ker v. California, 374 U. S. 23;
Malloy v. Hogan, 378 U. S. 1.
For me, this state judgment must be reversed because a right of
confrontation is "implicit in the concept of ordered liberty,"
Palko v. Connecticut, 302 U. S. 319,
302 U. S. 325,
reflected in the Due Process Clause of the Fourteenth Amendment
independently of the Sixth.
While either of these constitutional approaches brings one to
the same end result in this particular case, there is a basic
difference between the two in the kind of future constitutional
development they portend. The concept of Fourteenth Amendment due
process embodied in
Palko
Page 380 U. S. 409
and a host of other thoughtful past decisions now rapidly
falling into discard, recognizes that our Constitution tolerates,
indeed encourages, differences between the methods used to
effectuate legitimate federal and state concerns, subject to the
requirements of fundamental fairness "implicit in the concept of
ordered liberty." The philosophy of "incorporation," on the other
hand, subordinates all such state differences to the particular
requirements of the Federal Bill of Rights (
but see Ker v.
California, supra, at
374 U. S. 34) and increasingly subjects state legal
processes to enveloping federal judicial authority. "Selective"
incorporation or "absorption" amounts to little more than a diluted
form of the full incorporation theory. Whereas it rejects full
incorporation because of recognition that not all of the guarantees
of the Bill of Rights should be deemed "fundamental," it at the
same time ignores the possibility that not all phases of any given
guaranty described in the Bill of Rights are necessarily
fundamental.
It is too often forgotten in these times that the American
federal system is itself constitutionally ordained, that it
embodies values profoundly making for lasting liberties in this
country, and that its legitimate requirements demand continuing
solid recognition in all phases of the work of this Court. The
"incorporation" doctrines, whether full blown or selective, are
both historically and constitutionally unsound and incompatible
with the maintenance of our federal system on even course.
*
See state and English cases collected in 5 Wigmore,
Evidence §§ 1367, 1395 (3d ed.1940). State constitutional and
statutory provisions similar to the Sixth Amendment are collected
in 5 Wigmore,
supra, § 1397, n. 1.
MR. JUSTICE STEWART, concurring in the result.
I join in the judgment reversing this conviction, for the reason
that the petitioner was denied the opportunity to cross-examine,
through counsel, the chief witness for the prosecution. But I do
not join in the Court's pronouncement which makes "the Sixth
Amendment's right of an accused to confront the witnesses against
him . . . obligatory
Page 380 U. S. 410
on the States." That questionable
tour de force seems
to me entirely unnecessary to the decision of this case, which I
think is directly controlled by the Fourteenth Amendment's
guarantee that no State shall "deprive any person of life, liberty,
or property, without due process of law."
The right of defense counsel in a criminal case to cross-examine
the prosecutor's living witnesses is "[o]ne of the fundamental
guarantees of life and liberty," [
Footnote 1] and "one of the safeguards essential to a fair
trial." [
Footnote 2] It is, I
think, as indispensable an ingredient as the "right to be tried in
a courtroom presided over by a judge." [
Footnote 3] Indeed, this Court has said so this very Term.
Turner v. Louisiana, 379 U. S. 466,
379 U. S.
472-473. [
Footnote
4]
Here, that right was completely denied. Therefore, as the Court
correctly points out, we need not consider the case which could be
presented if Phillips' statement had been taken at a hearing at
which the petitioner's counsel was given a full opportunity to
cross-examine.
See West v. Louisiana, 194 U.
S. 258.
[
Footnote 1]
Kirby v. United States, 174 U. S.
47,
174 U. S.
55.
[
Footnote 2]
Alford v. United States, 282 U.
S. 687,
282 U. S.
692.
[
Footnote 3]
Rideau v. Louisiana, 373 U. S. 723,
373 U. S.
727.
[
Footnote 4]
See also In re Murchison, 349 U.
S. 133, where the Court said that
"due process requires as a minimum that an accused be given a
public trial after reasonable notice of the charges, have a right
to examine witnesses against him, call witnesses on his own behalf,
and be represented by counsel."
349 U.S. at
349 U. S.
134.
MR. JUSTICE GOLDBERG, concurring.
I agree with the holding of the Court that
"the Sixth Amendment's right of an accused to confront the
witnesses against him is . . . a fundamental right and is made
obligatory on the States by the Fourteenth Amendment."
Ante at
380 U. S. 403.
I therefore join in the opinion and judgment of the Court. My
Brother HARLAN, while agreeing with the result reached by the
Court, deplores the Court's
Page 380 U. S. 411
reasoning as "another step in the onward march of the long-since
discredited
incorporation' doctrine," ante at
380 U. S. 408.
Since I was not on the Court when the incorporation issue was
joined, see Adamson v. California, 332 U. S.
46, I deem it appropriate to set forth briefly my view
on this subject.
I need not recapitulate the arguments for or against
incorporation, whether "total" or "selective." They have been set
forth adequately elsewhere. [
Footnote
2/1] My Brother BLACK's view of incorporation has never
commanded a majority of the Court, though, in
Adamson, it
was assented to by four Justices. The Court, in its decisions, has
followed a course whereby certain guarantees "have been taken over
from the earlier articles of the federal bill of rights and brought
within the Fourteenth Amendment,"
Palko v. Connecticut,
302 U. S. 319,
302 U. S. 326,
by a process which might aptly be described as "a process of
absorption."
Ibid. See Cohen v. Hurley,
366 U. S. 117,
366 U. S. 154
(dissenting opinion of MR. JUSTICE BRENNAN); Brennan, The Bill of
Rights and the States, 36 N.Y.U.L.Rev. 761 (1961). Thus, the Court
has held that the Fourteenth
Page 380 U. S. 412
Amendment guarantees against infringement by the States the
liberties of the First Amendment, [
Footnote 2/2] the Fourth Amendment, [
Footnote 2/3] the Just Compensation Clause of the
Fifth Amendment, [
Footnote 2/4] the
Fifth Amendment's privilege against self-incrimination, [
Footnote 2/5] the Eighth Amendment's
prohibition of cruel and unusual punishments, [
Footnote 2/6] and the Sixth Amendment's guarantee
of the assistance of counsel for an accused in a criminal
prosecution. [
Footnote 2/7]
With all deference to my Brother HARLAN, I cannot agree that
this process has "come into the sunlight in recent years."
Ante at
380 U. S. 408.
Rather, I believe that it has its origins at least as far back as
Twining v. New Jersey, 211 U. S. 78,
211 U. S. 99,
where the Court stated that
"it is possible that some of the personal rights safeguarded by
the first eight Amendments against National action may also be
safeguarded against state action, because a denial of them would be
a denial of due process of law.
Chicago, Burlington &
Quincy Railroad v. Chicago, 166 U. S. 226."
This passage and the authority cited make clear that what is
protected by the Fourteenth Amendment are "rights," which apply in
every case, not solely in those cases where it seems "fair" to a
majority of the Court to afford the protection. Later cases
reaffirm that the process of "absorption" is one of extending
"rights."
See Ker v. California, 374 U. S.
23;
Malloy v. Hogan, 378 U. S.
1, and cases cited by MR. JUSTICE BRENNAN in his
dissenting opinion in
Cohen v. Hurley, supra, at
366 U. S. 156.
I agree with these decisions, as is apparent from my votes in
Page 380 U. S. 413
Gideon v. Wainwright, 372 U. S. 335;
Malloy v. Hogan, supra, and
Murphy v. Waterfront
Comm'n, 378 U. S. 52, and
my concurring opinion in
New York Times Co. v. Sullivan,
376 U. S. 254,
376 U. S. 297,
and I subscribe to the process by which fundamental guarantees of
the Bill of Rights are absorbed by the Fourteenth Amendment, and
thereby applied to the States.
Furthermore, I do not agree with my Brother HARLAN that, once a
provision of the Bill of Rights has been held applicable to the
States by the Fourteenth Amendment, it does not apply to the States
in full strength. Such a view would have the Fourteenth Amendment
apply to the States "only a
watered-down, subjective version of
the individual guarantees of the Bill of Rights.'" Malloy v.
Hogan, supra, at 378 U. S. 10-11.
It would allow the States greater latitude than the Federal
Government to abridge concededly fundamental liberties protected by
the Constitution. While I quite agree with Mr. Justice Brandeis
that
"[i]t is one of the happy incidents of the federal system that a
. . . State may . . . serve as a laboratory, and try novel social
and economic experiments,"
New State Ice Co. v. Liebmann, 285 U.
S. 262,
285 U. S. 280,
285 U. S. 311
(dissenting opinion), I do not believe that this includes the power
to experiment with the fundamental liberties of citizens
safeguarded by the Bill of Rights. My Brother HARLAN's view would
also require this Court to make the extremely subjective and
excessively discretionary determination as to whether a practice,
forbidden the Federal Government by a fundamental constitutional
guarantee, is, as viewed in the factual circumstances surrounding
each individual case, sufficiently repugnant to the notion of due
process as to be forbidden the States.
Finally, I do not see that my Brother HARLAN's view would
further any legitimate interests of federalism. It would require
this Court to intervene in the state judicial process with
considerable lack of predictability and with
Page 380 U. S. 414
a consequent likelihood of considerable friction. This is well
illustrated by the difficulties which were faced and were
articulated by the state courts attempting to apply this Court's
now discarded rule of
Betts v. Brady, 316 U.
S. 455.
See Green, The Bill of Rights, the
Fourteenth Amendment and the Supreme Court, 46 Mich.L.Rev. 869,
897-898. These difficulties led the Attorneys General of 22 States
to urge that this Court overrule
Betts v. Brady and apply
fully the Sixth Amendment's guarantee of right to counsel to the
States through the Fourteenth Amendment.
See Gideon v.
Wainwright, supra, at
372 U. S. 336. And to deny to the States the power to
impair a fundamental constitutional right is not to increase
federal power, but, rather, to limit the power of both federal and
state governments in favor of safeguarding the fundamental rights
and liberties of the individual. In my view, this promotes, rather
than undermines, the basic policy of avoiding excess concentration
of power in government, federal or state, which underlies our
concepts of federalism.
I adhere to and support the process of absorption by means of
which the Court holds that certain fundamental guarantees of the
Bill of Rights are made obligatory on the States through the
Fourteenth Amendment. Although, as this case illustrates, there are
differences among members of the Court as to the theory by which
the Fourteenth Amendment protects the fundamental liberties of
individual citizens, it is noteworthy that there is a large area of
agreement, both here and in other cases, that certain basic rights
are fundamental -- not to be denied the individual by either the
state or federal governments under the Constitution.
See, e.g.,
Cantwell v. Connecticut, 310 U. S. 296;
NAACP v. Alabama ex rel. Patterson, 357 U.
S. 449;
Gideon v. Wainwright, supra; New York Times
Co. v. Sullivan, supra; Turner v. Louisiana, 379 U.
S. 466.
[
Footnote 2/1]
See Adamson v. California, supra, at
332 U. S. 59
(concurring opinion of Mr. Justice Frankfurter);
id. at
332 U. S. 68
(dissenting opinion of MR. JUSTICE BLACK);
Malloy v.
Hogan, 378 U. S. 1;
id. at
378 U. S. 14
(dissenting opinion of MR. JUSTICE HARLAN);
Gideon v.
Wainwright, 372 U. S. 335,
372 U. S. 345
(concurring opinion of MR. JUSTICE Douglas);
id. at
372 U. S. 349
(concurring opinion of MR. JUSTICE HARLAN);
Poe v. Ullman,
367 U. S. 497,
367 U. S. 509
(dissenting opinion of MR. JUSTICE DOUGLAS); Frankfurter,
Memorandum on "Incorporation" of the Bill of Rights Into the Due
Process Clause of the Fourteenth Amendment, 78 Harv.L.Rev. 746;
Black, The Bill of Rights, 35 N.Y.U.L.Rev. 865 (1960); Brennan, The
Bill of Rights and the States, 36 N.Y.U.L.Rev. 761 (1961); Fairman,
Does the Fourteenth Amendment Incorporate the Bill of Rights? The
Original Understanding, 2 Stan.L.Rev. 5 (1949); Green, The Bill of
Rights, the Fourteenth Amendment and the Supreme Court, 46
Mich.L.Rev. 869 (1948); Henkin, "Selective Incorporation" in the
Fourteenth Amendment, 73 Yale L.J. 74 (1963).
[
Footnote 2/2]
See, e.g., Gitlow v. New York, 268 U.
S. 652,
268 U. S. 666;
De Jones v. Oregon, 299 U. S. 353,
299 U. S. 364;
Cantwell v. Connecticut, 310 U. S. 296,
310 U. S. 303;
Louisiana ex rel. Gremillion v. NAACP, 366 U.
S. 293,
366 U. S. 296;
New York Times Co. v. Sullivan, 376 U.
S. 254.
[
Footnote 2/3]
See Wolf v. Colorado, 338 U. S. 25;
Mapp v. Ohio, 367 U. S. 643.
[
Footnote 2/4]
Chicago, B. & Q. R. Co. v. Chicago, 166 U.
S. 226.
[
Footnote 2/5]
Malloy v. Hogan, 378 U. S. 1.
[
Footnote 2/6]
Robinson v. California, 370 U.
S. 660.
[
Footnote 2/7]
Gideon v. Wainwright, 372 U. S. 335.