Rehearing Denied Oct. 13, 1947. See.

Appeal from the Supreme Court of the State of California. [Adamson v. People of State of California 332 U.S. 46 (1947)] [332 U.S. 46, 47]

Mr. Morris Lavine, of Los Angeles, Cal., for appellant.

Mr. Walter L. Bowers, of Los Angeles, Cal., for appellee.

Mr. Justice REED delivered the opinion of the Court.

The appellant, Adamson, a citizen of the United States, was convicted, without recommendation for mercy, by a jury in a Superior Court of the State of California of [332 U.S. 46, 48] murder in the first degree. ¹ After considering the same objections to the conviction that are pressed here, the sentence of death was affirmed by the Supreme Court of the state. 27 Cal.2d 478, 165 P.2d 3. Review of that judgment by this Court was sought and allowed under Judicial Code 237, 28 U.S.C. 344, 28 U.S.C.A. 344.² The provisions of California law which were challenged in the state proceedings as invalid under the Fourteenth Amendment to the Federal Constitution are those of the state constitution and penal code in the margin. They permit the failure of a defendant to explain or to deny evidence against him to be commented upon by court and by counsel and to be considered by court and jury. ³ The defendant did not testify. As the trial court gave its instructions and the District Attorney argued the case in accordance with the constitutional and statutory provisions just referred to, we have [332 U.S. 46, 49] for decision the question of their constitutionality in these circumstances under the limitations of 1 of the Fourteenth Amendment. ⁴

The appellant was charged in the information with former convictions for burglary, larceny and robbery and pursuant to 1025, California Penal Code, answered that he had suffered the previous convictions. This answer barred allusion to these charges of convictions on the trial. ⁵ Under California's interpretation of 1025 of the Penal Code and 2051 of the Code of Civil Procedure, however, if the defendant, after answering affirmatively charges alleging prior convictions, takes the witness stand to deny or explain away other evidence that has been introduced 'the commission of these crimes could have been revealed to the jury on cross-examination to impeach his testimony.' People v. Adamson, 27 Cal.2d 478, 494, 165 P.2d 3, 11; People v. Braun, 14 Cal.2d 1, 6, 92 P.2d 402. This forces an accused who is a repeated offender to choose between the risk of having his prior offenses disclosed to the jury or of having it draw harmful inferences from uncontradicted evidence that can only be denied or explained by the defendant.

In the first place, appellant urges that the provision of the Fifth Amendment that no person 'shall be compelled in any criminal case to be a witness against himself' is a fundamental national privilege or immunity protected [332 U.S. 46, 50] against state abridgment by the Fourteenth Amendment or a privilege or immunity secured, through the Fourteenth Amendment, against deprivation by state action because it is a personal right, enumerated in the federal Bill of Rights.

Secondly, appellant relies upon the due process of law clause of the Fourteenth Amendment to invalidate the provisions of the California law, set out in note 3 supra, and as applied (a) because comment on failure to testify is permitted, (b) because appellant was forced to forego testimony in person because of danger of disclosure of his past convictions through cross-examnation and (c) because the presumption of innocence was infringed by the shifting of the burden of proof to appellant in permitting comment on his failure to testify.

We shall assume, but without any intention thereby of ruling upon the issue, ⁶ that state permission by law to the court, counsel and jury to comment upon and consider the failure of defendant 'to explain or to deny by his testimony any evidence or facts in the case against him' would infringe defendant's privilege against self-incrimination under the Fifth Amendment if this were a trial in a court of the United States under a similar law. Such an assumption does not determine appellant's rights under the Fourteenth Amendment. It is settled law that the clause [332 U.S. 46, 51] of the Fifth Amendment, protecting a person against being compelled to be a witness against himself, is not made effective by the Fourteenth Amendment as a protection against state action on the ground that freedom from testimonial compulsion is a right of national citizenship, or because it is a personal privilege or immunity secured by the Federal Constitution as one of the rights of man that are listed in the Bill of Rights.

The reasoning that leads to those conclusions starts with the unquestioned premise that the Bill of Rights, when adopted, was for the protection of the individual against the federal government and its provisions were inapplicable to similar actions done by the states. Barron v. Baltimore, ⁷ Pet. 243; Feldman v. United States, 322 U.S. 487, 490, 1283, 154 A.L.R. 982. With the adoption of the Fourteenth Amendment, it was suggested that the dual citizenship recognized by its first sentence,⁷secured for citizens federal protection for their elemental provileges and immunities of state citizenship. The Slaughter-House Cases⁸ decided, contrary to the suggestion, that these [332 U.S. 46, 52] rights, as privileges and immunities of state citizenship, remained under the sole protection of the state governments. This Court, without the expression of a contrary view upon that phase of the issues before the Court, has approved this determination. Maxwell v. Bugbee, 250 U.S. 525, 537, 5; Hamilton v. Regents, 293 U.S. 245, 261, 203. The power to free defendants in state trials from self-incrimination was specifically determined to be beyond the scope of the privileges and immunities clause of the Fourteenth Amendment in Twining v. New Jersey, 211 U.S. 78, 91-98, 16-19. 'The privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the state.'⁹ The Twining case likewise disposed of the contention that freedom from testimonial compulsion, being specifically granted by the Bill of Rights, is a federal privilege or immunity that is protected by the Fourteenth Amendment against state invasion. This Court held that the inclusion in the Bill of Rights of this protction agai nst the power of the national government did not make the privilege a federal privilege or immunity secured to citizens by the Constitution against state action. Twining v. New Jersey, supra, 211 U.S. at pages, 98, 99, 29 S.Ct. at page 19; Palko v. Connecticut, supra, 302 U.S. at page 328, 58 S.Ct. at page 153. After declaring that state and national citizenship co-exist in the same person, the Fourteenth Amendment forbids a state from abridging the privileges and immunities of citizens of the United States. As a matter of words, this leaves a state free to abridge, within the limits of the due process clause, the privileges and immunities flowing from state citizenship. This reading of the [332 U.S. 46, 53] Federal Constitution has heretofore found favor with the majority of this Court as a natural and logical interpretation. It accords with the constitutional doctrine of federalism by leaving to the states the responsibility of dealing with the privileges and immunities of their citizens except those inherent in national citizenship. ¹⁰ It is the construction placed upon the amendment by justices whose own experience had given them contemporaneous knowledge of the purposes that led to the adoption of the Fourteenth Amendment. This construction has become embedded in our federal system as a functioning element in preserving the balance between national and state power. We reaffirm the conclusion of the Twining and Palko cases that protection against self-incrimination is not a privilege or immunity of national citizenship.

Appellant secondly contends that if the privilege against self-incrimination is not a right protected by the privileges and immunities clause of the Fourteenth Amendment against state action, this privilege, to its full scope under the Fifth Amendment, inheres in the right to a fair trial. A right to a fair trial is a right admittedly protected by the due process clause of the Fourteenth Amendment.¹¹ Therefore, appellant argues, the due process clause of the Fourteenth Amendment protects his privilege agaist self-incrimination. The due process clause of the Fourteenth Amendment, however, does not draw all the rights of the federal Bill of Rights under its protection. That contention was made and rejected in Palko v. Connecticut, 302 U.S. 319, 323, 150. It was rejected with citation of the cases excluding several of the rights, protected by the Bill of Rights, against infringement by the National Government. [332 U.S. 46, 54] Nothing has been called to our attention that either the framers of the Fourteenth Amendment or the states that adopted intended its due process clause to draw within its scope the earlier amendments to the Constitution. Palko held that such provisions of the Bill of Rights as were 'implicit in the concept of ordered liberty,' 302 U.S. at page 325, 58 S.Ct. at pages 151, 152, became secure from state interference by the clause. But it held nothing more.

Specifically, the due process clause does not protect, by virtue of its mere existence the accused's freedom from giving testimony by compulsion in state trials that is secured to him against federal interference by the Fifth Amendment. Twining v. New Jersey, 211 U.S. 78, 99-114, 19-26; Palko v. Connecticut, supra, 302 U.S. at page 323, 58 S.Ct. at page 150. For a state to require testimony from an accused is not necessarily a breach of a state's obligation to give a fair trial. Therefore, we must examine the effect of the California law applied in this trial to see whether the comment on failure to testify violates the protection against state action that the due process clause does grant to an accused. The due process clause forbids compulsion to testify by fear of hurt, torture or exhaustion.¹² It forbids any other type of coercion that falls within the scope of due process.¹³ California follows Anglo-American legal tradition in excusing defendants in criminal prosecutions from compulsory testimony. Cf. Wigmore ( 3d Ed.) 2252. That is a matter of legal policy and [332 U.S. 46, 55] not because of the requirements of due process under the Fourteenth Amendment.¹⁴ So our inquiry is directed, not at the broad question of the constitutionality of compulsory testimony from the accused under the due process clause, but to the constitutionality of the provision of the California law that permits comment upon his failure to testify. It is, of course, logically possible that while an accused might be required, under appropriate penalties, to submit himself as a witness without a violation of due process, comment by judge or jury on inferences to be drawn from his failure to testify, in jurisdictions where an accused's privilege against self-incrimination is protected, might deny due process. For example, a statute might declare that a permitted refusal to testify would compel an acceptance of the truth of the prosecution's evidence.

Generally, comment on the failure of an accused to testify is forbidden in American jurisdictions.¹⁵ This arises from state constitutional or statutory provisions similar in character to the federal provisions. Fifth Amendment and 28 U.S.C. 632, 28 U.S.C.A. 632. California, however, is one of a few states that permit limited comment upon a defendant's failure to testify.¹⁶ That permission is narrow. The California law is set out in note 3 and authorizes comment by court and counsel upon the 'failure of the defendant to explain or to deny by his testimony any evidence [332 U.S. 46, 56] or facts in the case against him.' This does not involve any presumption, rebuttable or irrebuttable, either of guilt or of the truth of any fact, that is offered in evidence. Compare Tot v. United States, 319 U.S. 463, 470, 1246. It allows inferences to be drawn from proven facts. Because of this clause, the court can direct the jury's attention to whatever evidence there may be that a defendant could deny and the prosecution can argue as to inferences that may be drawn from the accused's failure to testify. Compare Caminetti v. United States, 242 U.S. 470, 492-495, 197, 198, L.R.A.1917F, 502, Ann.Cas.1917B, 1168; Raffel v. United States, 271 U.S. 494, 497, 567. There is here no lack of power in the trial court to adjudge and no denial of a hearing. California has prescribed a method for advising the jury in the search for truth. However sound may be the legislative conclusion that an accused should not be compelled in any criminal case to be a witness against himself, we see no reason why comment should not be made upon his silence. It seems quite natural that when a defendant has opportunity to deny or explain facts and determines not to do so, the prosecution should bring out the strength of the evidence by commenting upon defendant's failure to explain or deny it. The prosecution evidence may be of facts that may be beyond the knowledge of the accused. If so, his failure to testify would have little if any weight. But the facts may be such as are necessarily in the knowledge of the accused. In that case a failure to explain would point to an inability to explain.

Appellant sets out the circumstances of this case, however, to show coercion and unfairness in permitting comment. The guilty person was not seen at the place and time of the crime. There was evidence, however, that entrance to the place or room where the crime was committed might have been obtained through a small door. It was freshly broken. Evidence showed that six fingerprints [332 U.S. 46, 57] on the door were petitioner's. Certain diamond rings were missing from the deceased's possession. There was evidence that appellant, some time after the crime, asked an unidentified person whether the latter would be interested in purchasing a diamond ring. As has been stated, the information charged other crimes to appellant and he admitted them. His argument here is that he could not take the stand to deny the evidence against him because he would be subjected to a cross-examination as to former crimes to impeach his veracity and the evidence so produced might well bring about his conviction. Such cross-examination is allowable in California. People v. Adamson, supra, 27 Cal.2d 44, 165 P. 2 d 3. Therefore, appellant contends the California statute permitting comment denies him due process.

It is true that if comment were forbidden, an accused in this situation could remain silent and avoid evidence of former crimes and comment upon his failure to testify. We are of the view, however, that a state may control such a situation in accordance with its own ideas of the most efficient administration of criminal justice. The purpose of due process is not to protect an accused against a proper conviction but against an unfair conviction. When evidence is before a jury that threatens conviction, it does not seem unfair to require him to choose between leaving the adverse evidence unexplained and subjecting himself to impeachment through disclosure of former crimes. Indeed, this is a dilemma with which any defendant may be faced. If facts, adverse to the defendant, are proven by the prosecution, there may be no way to explain them favorably to the accused except by a witness who may be vulnerable to impeachment on cross-examination. The defendant must then decide whether or not to use such a witness. The fact that the witness may also be the defendant [332 U.S. 46, 58] makes the choice more difficult but a denial of due process does not emerge from the circumstances.¹⁷

There is no basis in the California law for appellant's objection on due process or other grounds that the statutory authorization to comment on the failure to explain or deny adverse testimony shifts the burden of proof or the duty to go forward with the evidence. Failure of the accused to testify is not an admission of the truth of the adverse evidence. Instructions told the jury that the burden of proof remained upon the state and the presumption of innocence with the accused. Comment on failure to deny proven facts does not in California tend to supply any missing element of proof of guilt. People v. Adamson, supra, 27 Cal.2d 489-495, 165 P.2d 3. It only directs attention to the strength of the evidence for the prosecution or to the weakness of that for the defense. The Supreme Court of California called attention to the fact that the prosecutor's argument approached the borderline in a statement that might have been construed as asserting 'that the jury should infer guilt solely from defendant's silence.' That court felt that it was improbable the jury was misled into such an understanding of their power. We shall not interfere with such a conclusion. People v. Adamson, supra, 27 Cal.2d 494, 495, 165 P.2d 3, 12.

Finally, appellant contends that due process of law was denied him by the introduction as evidence of tops of women's stockings that were found in his room. The claim is made that such evidence inflamed the jury. The lower part of a woman's stocking was found under the victim's body. The top was not found. The corpse was barelegged. The tops from defendant's room did not [332 U.S. 46, 59] match the lower part found under the dead body. The California court held that the tops were admissible as evidence because this 'interest in women's stocking tops is a circumstance that tends to identify defendant' as the perpetrator of the crime. We do not think the introduction of this evidence violated any federal constitutional right.

We find no other error that gives ground for our intervention in California's administration of criminal justice.

Affirmed.

Footnotes

[Footnote 1] There was also a conviction for first degee burglary. This requires no discussion.

[Footnote 2] This section authorizes appeal to this Court from the final judgment of a state when the validity of a state statute is questioned on the ground of its being repugnant to the Constitution of the United States. The section has been applied so as to cover a state constitutional provision. Railway Express Agency, Inc. v. Virginia, 282 U.S. 440, 72 A.L.R. 102; King Mfg. Co. v. Augusta, 277 U.S. 100 .

[Footnote 3] Constitution of California, art. 1, 13: '* * * No person shall be twice put in jeopardy for the same offense; nor be compelled in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; but in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury. * * *'

Penal Code of California, 1323: 'A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but if he offers himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief. The failure of the defendant to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by counsel.'

[Footnote 4] All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privilege or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

[Footnote 5] Penal Code of California, 1025: '* * * In case the defendant pleads not guilty, and answers that he has suffered the previous conviction, the charge of the previous conviction must not be read to the jury, nor alluded to on the trial.'

[Footnote 6] The California law protects a defendant against compulsion to testify, though allowing comment upon his failure to meet evidence against him. The Fifth Amendment forbids compulsion on a defendant to testify. Boyd v. United States, 116 U.S. 616, 631, 632, 532, 533; cf. Davis v. United States, 328 U.S. 582, 587, 593, 1258, 1261. A federal statute that grew out of the extension of permissible witnesses to include those charged with offenses negatives a presumption against an accused for failure to avail himself of the right to testify in his own defense. 28 U.S.C. 632, 28 U.S.C.A. 632; Bruno v. United States, 308 U.S. 287. It was this statute which is interpreted to protect the defendant against comment for his claim of privilege. Wilson v. United States, 149 U.S. 60, 66, 766; Johnson v. United States, 318 U.S. 189, 199, 554.

[Footnote 7] 'All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.'

[Footnote 8] 16 Wall. 36. The brief of Mr. Fellows for the plaintiff in error set out the legislative history in an effort to show that the purpose of the first section of the Fourteenth Amendment was to put the 'Rights of Citizens' under the protection of the United States. It was pointed out, p. 12, that the Fourteenth Amendment was needed to accomplish that result. After quoting from the debates, the brief summarized the argument, as follows, p. 21: 'As the result of this examination, the only conclusion to be arrived at, as to the intention of Congress in proposing the amendments, and especially the first section of the Fourteenth Amendment, and the interpretation universally put upon it by every member of Congress, whether friend or foe, the interpretation in which all were agreed, was, in the words of Mr. Hale, 'that it was intended to apply to every State which has failed to apply equal protection to life, liberty and property;' or in the words of Mr. Bingham, 'that the protection given by the laws of the States shall be equal in respect to life, liberty and property to all persons;' or in the language of Mr. Sumner, that it abolished 'oligarchy, aristocracy, caste, or monopoly with peculiar privileges and powers."

[Footnote 9] Snyder v. Massachusetts, 291 U.S. 97, 105, 332, 90 A.L.R. 575; Palko v. Connecticut, 302 U.S. 319, 324, 151; Twining v. New Jersey, supra, 211 U.S. 114, 29 S. Ct. 26.

[Footnote 10] See Madden v. Kentucky, 309 U.S. 83, 90, 409, 125 A.L.R. 1383, and cases cited; and see the concurring opinions in Edwards v. California, 314 U.S. 160, and the opinion of Stone, J., in Hague v. C.I.O., 307 U.S. 496, 519, 965.

[Footnote 11] Moore v. Dempsey, 261 U.S. 86, 91, 266; Chambers v. Florida, 309 U.S. 227, 238, 477; Buchalter v. New York, 319 U.S. 427.

[Footnote 12] White v. Texas, 310 U.S. 530; Brown v. Mississippi, 297 U.S. 278; Ashcraft v. Tennessee, 322 U.S. 143, 154, 926; Ashcraft v. Tennessee, 327 U.S. 274.

[Footnote 13] See Malinski v. New York, 324 U.S. 401, concurring op. at 414, dissent at 438, 787, 798; Buchalter v. New York, supra, 319 U.S. at page 429, 63 S.Ct. at page 1130; Palko v. Connecticut, supra, 302 U.S. at page 325, 58 S.Ct. at pages 151, 152; Carter v. Illinois, 329 U.S. 173.

State action must 'be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions and not infrequently are designated as 'law of the land." Hebert v. Louisiana, 272 U.S. 312, 316, 104, 48A.L.R. 110 2.

[Footnote 14] Twining v. New Jersey, supra, 211 U.S. at pages 110Ÿ112, 29 S.Ct. at pages 24, 25.

[Footnote 15] VIII Wigmore, supra, 412.

[Footnote 16] The cases and statutory references are collected in VIII Wigmore, supra, at pp. 413 et seq. New Jersey, Ohio and Vermont permit comment. The question of permitting comment upon the failure of an accused to testify has been a matter for consideration in recent years. See Reports of American Bar Association (1931) 137; Proceedings, American Law Institute, 1930Ÿ31, 202; Reeder, Comment Upon Failure of Accused to Testify, 31 Mich. L.Rev. 40; Bruce, the Right to Comment on the Failure of the Defendant to Testify, Id., 226.

[Footnote 17] Comment here did not follow a grant of privilege that carried immunity from comment. The choice between giving evidence and remaining silent was an open choice. There was no such possible misleading of the defendant as we condemned in Johnson v. United States, 318 U.S. 189, 195Ÿ 199, 552Ÿ554.