In 1961 respondent was tried and convicted in an Ohio court for
violation of the Ohio Securities Act. Respondent had not taken the
stand, and the prosecutor commented extensively, as permitted by
Ohio law, on his failure to testify. The conviction was affirmed by
an Ohio court of appeals, the State Supreme Court declined review,
and this Court dismissed an appeal and denied certiorari in 1963.
Shortly thereafter respondent sought a writ of habeas corpus,
alleging various constitutional violations at his trial. The
federal District Court dismissed the petition, but the Court of
Appeals reversed, noting that, on the day preceding oral argument
of the appeal, the Supreme Court, in
Malloy v. Hogan,
378 U. S. 1, held
that the Fifth Amendment's freedom from self-incrimination is also
protected by the Fourteenth against state abridgment, and reasoning
that the protection includes freedom from comment on failure to
testify. In
Griffin v. California, 380 U.
S. 609, this Court held that adverse comment on a
defendant's failure to testify in a state criminal trial violates
the privilege against self-incrimination, and the parties here were
requested to brief and argue the question of the retroactivity of
that doctrine.
Held: The doctrine of
Griffin v. California
will not be applied retrospectively.
Linkletter v. Walker,
381 U. S. 618,
followed. Pp.
382 U. S.
409-419.
337 F.2d 990, vacated and remanded.
Page 382 U. S. 407
MR. JUSTICE STEWART delivered the opinion of the Court.
In 1964, the Court held that the Fifth Amendment's privilege
against compulsory self-incrimination "is also protected by the
Fourteenth Amendment against abridgment by the States."
Malloy
v. Hogan, 378 U. S. 1,
378 U. S. 6. In
Griffin v. California, decided on April 28, 1965, the
Court held that adverse comment by a prosecutor or trial judge upon
a defendant's failure to testify in a state criminal trial violates
the federal privilege against compulsory self-incrimination,
because such comment "cuts down on the privilege by making its
assertion costly."
380 U. S. 609,
380 U. S. 614.
The question before us now is whether the rule of
Griffin v.
California is to be given retrospective application.
I
In the summer of 1961, the respondent was brought to trial
before a jury in an Ohio court upon an indictment charging
violations of the Ohio Securities Act. [
Footnote 1] The respondent did not testify in his own
behalf, and the prosecuting attorney, in his summation to the jury,
commented extensively upon that fact. [
Footnote 2] The jury found
Page 382 U. S. 408
the respondent guilty, the judgment of conviction was affirmed
by an Ohio court of appeals, and the Supreme Court of Ohio declined
further review. 173 Ohio St. 542, 184 N.E.2d 213. The respondent
then brought his case to this Court, claiming several
constitutional errors but not attacking the Ohio comment rule as
such. On May 13, 1963, we dismissed the appeal and denied
certiorari, MR. JUSTICE BLACK dissenting.
373 U.
S. 240. All avenues of direct review of the respondent's
conviction were thus fully foreclosed more than a year before our
decision in
Malloy v. Hogan, supra, and almost two years
before our decision in
Griffin v. California, supra.
A few weeks after our denial of certiorari, the respondent
sought a writ of habeas corpus in the United States District Court
for the Southern District of Ohio, again alleging various
constitutional violations in his state trial. The District Court
dismissed the petition, and the respondent appealed to the United
States Court of Appeals for the Sixth Circuit. On November 10,
1964, that court reversed, noting that,
"the day before the oral argument of this appeal, the Supreme
Court, in
Malloy v. Hogan . . . , reconsidered its
previous rulings and held that the Fifth Amendment's exception from
self-incrimination is also protected by the Fourteenth Amendment
against abridgment by the states,"
and reasoning that
"the protection against self-incrimination under the Fifth
Amendment includes not only the right to refuse to answer
incriminating questions, but also the right that such refusal shall
not be commented upon by counsel for the prosecution."
337 F.2d 990, 992.
We granted certiorari, requesting the parties "to brief and
argue the question of the retroactivity of the doctrine announced
in
Griffin v. California. . . ." 381 U.S. 923. Since, as
we have noted, the original Ohio
Page 382 U. S. 409
judgment of conviction in this case became final long before
Griffin v. California was decided by this Court, that
question is squarely presented. [
Footnote 3]
II
In
Linkletter v. Walker, 381 U.
S. 618, we held that the exclusionary rule of
Mapp
v. Ohio, 367 U. S. 643, was
not to be given retroactive effect. The
Linkletter opinion
reviewed in some detail the competing conceptual and
jurisprudential theories bearing on the problem of whether a
judicial decision that overturns previously established law is to
be given retroactive, or only prospective, application. MR. JUSTICE
CLARK's opinion for the Court outlined the history and theory of
the problem in terms both of the views of the commentators and of
the decisions in this and other courts which have reflected those
views. It would be a needless exercise here to survey again a field
so recently and thoroughly explored. [
Footnote 4]
Page 382 U. S. 410
Rather, we take as our starting point
Linkletter's
conclusion that "the accepted rule today is that, in appropriate
cases, the Court may, in the interest of justice, make the rule
prospective," that there is
"no impediment -- constitutional or philosophical -- to the use
of the same rule in the constitutional area where the exigencies of
the situation require such an application,"
in short, that "the Constitution neither prohibits nor requires
retrospective effect." Upon that premise, resolution of the issue
requires us to
"weigh the merits and demerits in each case by looking to the
prior history of the rule in question, its purpose and effect, and
whether retrospective operation will further or retard its
operation."
381 U.S. at
381 U. S.
628-629. [
Footnote
5]
III
Twining v. New Jersey was decided in 1908.
211 U. S. 211 U.S.
78. In that case, the plaintiffs in error had been convicted by the
New Jersey courts after a trial in which the judge had instructed
the jury that it might draw an adverse inference from the
defendants' failure to testify. The plaintiffs in error urged in
this Court two propositions:
"first, that the exemption from compulsory self-incrimination is
guaranteed by the Federal Constitution against impairment by the
States; and, second, if it be so guaranteed, that the exemption
was, in fact, impaired in the case at bar."
211 U.S. at
211 U. S. 91. In
a lengthy opinion which thoroughly considered both the Privileges
and Immunities Clause and the Due Process Clause of the Fourteenth
Amendment, the Court held, explicitly and unambiguously,
"that the exemption from compulsory self-incrimination in the
courts of the States is
Page 382 U. S. 411
not secured by any part of the Federal Constitution."
211 U.S. at
211 U. S. 114.
Having thus rejected the first proposition advanced by the
plaintiffs in error, the Court refrained from passing on the
second. That is, the Court did not decide whether adverse comment
upon a defendant's failure to testify constitutes a violation of
the federal constitutional right against self-incrimination.
[
Footnote 6]
The rule thus established in the
Twining case was
reaffirmed many times through the ensuing years. In an opinion for
the Court in 1934, Mr. Justice Cardozo cited
Twining for
the proposition that "[t]he privilege against self-incrimination
may be withdrawn and the accused put upon the stand as a witness
for the state."
Snyder v. Massachusetts, 291 U. S.
97,
291 U. S. 105.
Two years later Chief Justice Hughes, writing for a unanimous
Court, reiterated the explicit statements of the rule in
Twining and
Snyder, noting that
"[t]he compulsion to which the quoted statements refer is that
of the processes of justice by which the accused may be called as a
witness and required to testify."
Brown v. Mississippi, 297 U. S. 278,
297 U. S. 285.
In 1937, the Court again approved the
Twining doctrine in
Palko v. Connecticut, 302 U. S. 319,
302 U. S. 324,
325-326. In
Adamson v. California, 332 U. S.
46, the issue was once more presented to the Court in
much the same form as it had been presented almost 40 years earlier
in
Twining. In
Adamson, there had been
comment
Page 382 U. S. 412
by Judge and prosecutor upon the defendant's failure to testify
at his trial, as permitted by the California Constitution. The
Court again followed
Twining in holding that the
Fourteenth Amendment does not require a State to accord the
privilege against self-incrimination, and, as in
Twining,
the Court did not reach the question whether adverse comment upon a
defendant's failure to testify would violate the Fifth Amendment
privilege. [
Footnote 7]
Thereafter, the Court continued to adhere to the
Twining
rule, notably in
Knapp v. Schweitzer, decided in 1958,
357 U. S. 371,
357 U. S. 374,
and in
Cohen v. Hurley, decided in 1961,
366 U.
S. 117,
366 U. S.
127-129.
In recapitulation, this brief review clearly demonstrates: (1)
For more than half a century, beginning in 1908, the Court adhered
to the position that the Federal Constitution does not require the
States to accord the Fifth Amendment privilege against
self-incrimination. (2) Because of this position, the Court, during
that period, never reached the question whether the federal
guarantee against self-incrimination prohibits adverse comment upon
a defendant's failure to testify at his trial. [
Footnote 8] Although there were strong dissenting
voices, [
Footnote 9] the Court
made not the slightest deviation from that position during a period
of more than 50 years.
Thus matters stood in 1964, when
Malloy v. Hogan
announced that the Fifth Amendment privilege against
self-incrimination is protected by the Fourteenth Amendment
Page 382 U. S. 413
against abridgment by the States (378 U.S. at
378 U. S. 6). Less
than a year later, on April 28, 1965,
Griffin v.
California held that the Fifth Amendment, "in its bearing on
the States by reason of the Fourteenth Amendment, forbids . . .
comment by the prosecution on the accused's silence. . . ." (380
U.S. at
380 U. S.
615.)
IV
Thus, we must reckon here, as in
Linkletter, 381 U.S.
at
381 U. S. 636,
with decisional history of a kind which Chief Justice Hughes
pointed out
"is an operative fact, and may have consequences which cannot
justly be ignored. The past cannot always be erased by a new
judicial declaration."
Chicot County Drainage Dist. v. Baxter State Bank,
308 U. S. 371,
308 U. S. 374.
It is against this background that we look to the purposes of the
Griffin rule, the reliance placed upon the
Twining doctrine, and the effect on the administration of
justice of a retrospective application of
Griffin. See
Linkletter v. Walker, 381 U.S. at
381 U. S.
636.
In
Linkletter, the Court stressed that the prime
purpose of the rule of
Mapp v. Ohio, [
Footnote 10] rejecting the doctrine of
Wolf
v. Colorado [
Footnote
11] as to the admissibility of unconstitutionally seized
evidence, was "to deter the lawless action of the police and to
effectively enforce the Fourth Amendment." 381 U.S. at
381 U. S. 637.
There, we could not
"say that this purpose would be advanced by making the rule
retrospective. The misconduct of the police prior to
Mapp
has already occurred, and will not be corrected by releasing the
prisoners involved."
Ibid.
No such single and distinct "purpose" can be attributed to
Griffin v. California, holding it constitutionally
impermissible for a State to permit comment by a judge or
prosecutor upon a defendant's failure to testify in a
Page 382 U. S. 414
criminal trial. The
Griffin opinion reasoned that such
comment "is a penalty imposed by courts for exercising a
constitutional privilege. It cuts down on the privilege by making
its assertion costly." 380 U.S. at
380 U. S. 614.
It follows that the "purpose" of the
Griffin rule is to be
found in the whole complex of values that the privilege against
self-incrimination itself represents, values described in the
Malloy case as reflecting
"recognition that the American system of criminal prosecution is
accusatorial, not inquisitorial, and that the Fifth Amendment
privilege is its essential mainstay. . . . Governments, state and
federal, are thus constitutionally compelled to establish guilt by
evidence independently and freely secured, and may not, by
coercion, prove a charge against an accused out of his own mouth.
[
Footnote 12]"
378 U.S. at
378 U. S. 7-8.
Page 382 U. S. 415
Insofar as these "purposes" of the Fifth Amendment privilege
against compulsory self-incrimination bear on the question before
us in the present case, several considerations become immediately
apparent. First, the basic purposes that lie behind the privilege
against self-incrimination do not relate to protecting the innocent
from conviction, but rather to preserving the integrity of a
judicial system in which even the guilty are not to be convicted
unless the prosecution "shoulder the entire load." Second, since
long before
Twining v. New Jersey, all the States have, by
their own law, respected these basic purposes by extending the
protection of the testimonial privilege against self-incrimination
to every defendant tried in their criminal courts. In
Twining, the Court noted that
"all the States of the Union have, from time to time, with
varying form but uniform meaning, included the privilege in their
constitutions, except the States of New Jersey and Iowa, and, in
those States, it is held to be part of the existing law."
211 U.S. at
211 U. S. 92.
See also 8 Wigmore, Evidence § 2252 (McNaughton rev.1961).
It follows that such variations as may have existed among the
States in the application of their respective guarantees against
self-incrimination during the 57 years between
Twining and
Griffin did not go to the basic purposes of the federal
privilege. And, finally,
Page 382 U. S. 416
insofar as strict application of the federal privilege against
self-incrimination reflects the Constitution's concern for the
essential values represented by
"our respect for the inviolability of the human personality and
of the right of each individual 'to a private enclave where he may
lead a private life,' [
Footnote
13]"
any impingement upon those values resulting from a State's
application of a variant from the federal standard cannot now be
remedied. As we pointed out in
Linkletter with respect to
the Fourth Amendment rights there in question, "the ruptured
privacy . . . cannot be restored." 381 U.S. at
381 U. S.
637.
As in
Mapp, therefore, we deal here with a doctrine
which rests on considerations of quite a different order from those
underlying other recent constitutional decisions which have been
applied retroactively. The basic purpose of a trial is the
determination of truth, and it is self-evident that to deny a
lawyer's help through the technical intricacies of a criminal trial
or to deny a full opportunity to appeal a conviction because the
accused is poor is to impede that purpose, and to infect a criminal
proceeding with the clear danger of convicting the innocent.
See Gideon v. Wainwright, 372 U.
S. 335;
Doughty v. Maxwell, 376 U.
S. 202;
Griffin v. Illinois, 351 U. S.
12;
Eskridge v. Washington Prison Board,
357 U. S. 214. The
same can surely be said of the wrongful use of a coerced
confession.
See Jackson v. Denno, 378 U.
S. 368;
McNerlin v. Denno, 378 U.
S. 575;
Reck v. Pate, 367 U.
S. 433. By contrast, the Fifth Amendment's privilege
against self-incrimination is not an adjunct to the ascertainment
of truth. That privilege, like the guarantees of the Fourth
Amendment, stands as a protection of quite different constitutional
values -- values reflecting the concern of our society for the
right of each individual to be let alone. To recognize this is no
more than to accord those values undiluted respect.
Page 382 U. S. 417
There can be no doubt of the States' reliance upon the
Twining rule for more than half a century, nor can it be
doubted that they relied upon that constitutional doctrine in the
utmost good faith. Two States amended their constitutions so as
expressly to permit comment upon a defendant's failure to testify,
Ohio in 1912, [
Footnote 14]
and California in 1934. [
Footnote 15] At least four other States followed some
variant of the rule permitting comment. [
Footnote 16]
Moreover, this reliance was not only invited over a much longer
period of time, during which the
Twining doctrine was
repeatedly reaffirmed in this Court, but was of unquestioned
legitimacy as compared to the reliance of the States upon the
doctrine of
Wolf v. Colorado, considered in
Linkletter as an important factor militating against the
retroactive application of
Mapp. During the 12-year period
between
Wolf v. Colorado and
Mapp v. Ohio, the
States were aware that illegal seizure of evidence by state
officers violated the Federal Constitution. [
Footnote 17] In the 56 years that elapsed from
Twining to
Malloy, by contrast, the States were
repeatedly told that comment upon the failure of an accused to
testify in a state criminal trial in no way violated the Federal
Constitution. [
Footnote
18]
Page 382 U. S. 418
The last important factor considered by the Court in
Linkletter was "the effect on the administration of
justice of a retrospective application of
Mapp." 381 U.S.
at
381 U. S. 636.
A retrospective application of
Griffin v. California would
create stresses upon the administration of justice more
concentrated, but fully as great, as would have been created by a
retrospective application of
Mapp. A retrospective
application of
Mapp would have had an impact only in those
States which had not themselves adopted the exclusionary rule,
apparently some 24 in number. [
Footnote 19] A retrospective application of
Griffin would have an impact only upon those States which
have not themselves adopted the no-comment rule, apparently six in
number. [
Footnote 20] But,
upon those six States, the impact would be very grave indeed. It is
not in every criminal trial that tangible evidence of a kind that
might raise
Mapp issues is offered. But it may fairly be
assumed that there has been comment in every single trial in the
courts of California, Connecticut, Iowa, New Jersey, New Mexico,
and Ohio, in which the defendant did not take the witness stand --
in accordance with state law and with the United States
Constitution as explicitly interpreted by this Court for 57
years.
Empirical statistics are not available, but experience suggests
that California is not indulging in hyperbole when, in its
amicus curiae brief in this case, it tells us that,
"Prior to this Court's decision in
Griffin, literally
thousands of cases were tried in California in which comment was
made upon the failure of the accused to take the stand. Those
reaping the greatest benefit from a rule compelling retroactive
application of
Griffin would be [those] under lengthy
sentences imposed many years before
Griffin. Their cases
would offer the least like
Page 382 U. S. 419
likelihood of a successful retrial, since, in many, if not most,
instances, witnesses and evidence are no longer available."
There is nothing to suggest that what would be true in
California would not also be true in Connecticut, Iowa, New Jersey,
New Mexico, and Ohio. To require all of those States now to void
the conviction of every person who did not testify at his trial
would have an impact upon the administration of their criminal law
so devastating as to need no elaboration.
V
We have proceeded upon the premise that "we are neither required
to apply, nor prohibited from applying, a decision
retrospectively."
Linkletter v. Walker, 381 U.S. at
381 U. S. 629.
We have considered the purposes of the
Griffin rule, the
reliance placed upon the
Twining doctrine, and the effect
upon the administration of justice of a retrospective application
of
Griffin. After full consideration of all the factors,
we are not able to say that the
Griffin rule requires
retrospective application.
The judgment is vacated, and the case remanded to the Court of
Appeals for the Sixth Circuit for consideration of the claims
contained in the respondent's petition for habeas corpus, claims
which that court has never considered.
It is so ordered.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, dissents
for substantially the same reasons stated in his dissenting opinion
in
Linkletter v. Walker, 381 U. S. 618, at
381 U. S.
640.
THE CHIEF JUSTICE took no part in the decision of this case.
MR. JUSTICE FORTAS took no part in the consideration or decision
of this case.
[
Footnote 1]
Ohio Rev.Code §§ 1707.01-1707.45.
[
Footnote 2]
Since 1912, a provision of the Ohio Constitution has permitted a
prosecutor to comment upon a defendant's failure to testify in a
criminal trial. Article I, § 10, of the Constitution of Ohio
provides, in part, as follows:
"No person shall be compelled, in any criminal case, to be a
witness against himself; but his failure to testify may be
considered by the court and jury and may be the subject of comment
by counsel."
Section 2945.43 of the Revised Code of Ohio contains
substantially the same wording.
[
Footnote 3]
The Supreme Court of California and the Supreme Court of Ohio
have both considered the question, and each court has unanimously
held that, under the controlling principles discussed in
Linkletter v. Walker, 381 U. S. 618, the
Griffin rule is not to be applied retroactively in those
States.
In re Gaines, 63 Cal. 2d
234, 404 P.2d 473;
Pinch v. Maxwell, 3 Ohio St.2d 212,
210 N.E.2d 883.
As in
Linkletter, the question in the present case is
not one of "pure prospectivity." The rule announced in
Griffin was applied to reverse Griffin's conviction.
Compare England v. Louisiana State Board of Medical
Examiners, 375 U. S. 411. Nor
is there any question of the applicability of the
Griffin
rule to cases still pending on direct review at the time it was
announced.
Cf. O'Connor v. Ohio, ante, p. 286.
The precise question is whether the rule of
Griffin v.
California is to be applied to cases in which the judgment of
conviction was rendered, the availability of appeal exhausted, and
the time for petition for certiorari elapsed or a petition for
certiorari finally denied, all before April 28, 1965.
[
Footnote 4]
See Linkletter v. Walker, 381 U.
S. 618,
381 U. S.
622-628.
[
Footnote 5]
For a recent commentary on the
Linkletter decision and
a suggested alternative approach to the problem,
see
Mishkin, The Supreme Court 1964 Term -- Foreword: The High Court,
The Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev.
56.
[
Footnote 6]
"We have assumed only for the purpose of discussion that what
was done in the case at bar was an infringement of the privilege
against self-incrimination. We do not intend, however, to lend any
countenance to the truth of that assumption. The courts of New
Jersey, in adopting the rule of law which is complained of here,
have deemed it consistent with the privilege itself, and not a
denial of it. . . . The authorities upon the question are in
conflict. We do not pass upon the conflict, because, for the
reasons given, we think that the exemption from compulsory
self-incrimination in the courts of the States is not secured by
any part of the Federal Constitution."
211 U.S. at
211 U. S.
114.
[
Footnote 7]
As the Court pointed out in
Adamson, 332 U.S. at
332 U. S. 50, n.
6, this question had never arisen in the federal courts, because a
federal statute had been interpreted as prohibiting adverse comment
upon a defendant's failure to testify in a federal criminal trial.
See 20 Stat. 30, as amended, now 18 U.S.C. § 3481;
Bruno v. United States, 308 U. S. 287;
Wilson v. United States, 149 U. S. 60.
[
Footnote 8]
In the federal judicial system, the matter was controlled by a
statute.
See n 7,
supra.
[
Footnote 9]
See, e.g., MR. JUSTICE BLACK's historic dissenting
opinion in
Adamson v. California, 332 U.S. at
332 U. S.
68.
[
Footnote 10]
367 U. S. 367 U.S.
643
[
Footnote 11]
338 U. S. 338 U.S.
25
[
Footnote 12]
These values were further catalogued in Mr. Justice Goldberg's
opinion for the Court in
Murphy v. Waterfront Comm'n,
378 U. S. 52,
announced the same day as
Malloy v. Hogan, 378 U. S.
1:
"The privilege against self-incrimination "registers an
important advance in the development of our liberty --
one of
the great landmarks in man's struggle to make himself civilized.'"
Ullmann v. United States, 350 U.
S. 422, 350 U. S. 426.
[The quotation is from Griswold, The Fifth Amendment Today (1955),
7.] It reflects many of our fundamental values and most noble
aspirations: our unwillingness to subject those suspected of crime
to the cruel trilemma of self-accusation, perjury or contempt; our
preference for an accusatorial, rather than an inquisitorial system
of criminal justice; our fear that self-incriminating statements
will be elicited by inhumane treatment and abuses; our sense of
fair play which dictates"
"a fair state-individual balance by requiring the government to
leave the individual alone until good cause is shown for disturbing
him and by requiring the government in its contest with the
individual to shoulder the entire load,"
"8 Wigmore, Evidence (McNaughton rev., 1961), 317; our respect
for the inviolability of the human personality and of the right of
each individual 'to a private enclave where he may lead a private
life,'
United States v. Grunewald, 233 F.2d 556, 581-582
(Frank, J., dissenting),
rev'd, 353 U. S.
391; our distrust of self-deprecatory statements, and
our realization that the privilege, while sometimes 'a shelter to
the guilty,' is often 'a protection to the innocent.'
Quinn v.
United States, 349 U. S. 155,
349 U. S.
162."
378 U.S. at
378 U. S.
55.
"[T]he privilege against self-incrimination represents many
fundamental values and aspirations. It is 'an expression of the
moral striving of the community . . . a reflection of our common
conscience. . . .'
Malloy v. Hogan, ante, p.
378 U. S.
9, n. 7, quoting Griswold, The Fifth Amendment Today
(1955), 73. That is why it is regarded as so fundamental a part of
our constitutional fabric despite the fact that 'the law and the
lawyers . . . have never made up their minds just what it is
supposed to do, or just whom it is intended to protect.' Kalven,
Invoking the Fifth Amendment -- Some Legal and Impractical
Considerations, 9 Bull. Atomic Sci. 181, 182."
378 U.S. at
378 U. S. 56, n.
5.
[
Footnote 13]
See n 12,
supra.
[
Footnote 14]
See n 2,
supra.
[
Footnote 15]
California Constitution, Art. I, § 13.
[
Footnote 16]
See State v. Heno, 119 Conn. 29, 174 A. 181;
State
v. Ferguson, 226 Iowa 361, 372-373, 283 N.W. 917, 923;
State v. Corby, 28 N.J. 106,
145 A.2d
289;
State v. Sandoval, 59 N.M. 85, 279 P.2d 80.
[
Footnote 17]
In
Wolf v. Colorado, 338 U. S. 25, it
was unequivocally determined by a unanimous Court that the Federal
Constitution, by virtue of the Fourteenth Amendment, prohibits
unreasonable searches and seizures by state officers.
"The security of one's privacy against arbitrary intrusion by
the police . . . is . . . implicit in 'the concept of ordered
liberty,' and, as such, enforceable against the States through the
Due Process Clause."
338 U.S. at
338 U. S.
27-28.
[
Footnote 18]
See, for example, Scott v. California, 364 U.
S. 471, where, as late as December, 1960, only a single
member of the Court expressed dissent from the dismissal of an
appeal challenging the constitutionality of the California comment
rule.
[
Footnote 19]
See Elkins v. United States, 364 U.
S. 206, at
364 U. S.
224-225 (Appendix).
[
Footnote 20]
See notes
2
15 and
16 supra.