Palko v. Connecticut: Landmark Case Brief Highlights Evolution of Double Jeopardy Law

U.S. Supreme Court

In the case of Palko v. Connecticut, the defendant, Palko, was indicted for first-degree murder but was convicted of second-degree murder and received a life sentence.

However, the State of Connecticut appealed, leading to a reversal of the judgment and the order for a new trial.

Subsequently, Palko was retried and convicted of first-degree murder, this time receiving a death sentence. Palko sought certiorari to challenge the second conviction.

The pivotal issue in this case was whether the double jeopardy provision of the Fifth Amendment should be applied to the states through the Fourteenth Amendment.

The Supreme Court held that it should not, affirming Palko’s first-degree murder conviction and the accompanying death sentence. The Court outlined two requirements for states to exclude specific rights from their laws, stating that they must not be essential to a scheme of ordered liberty and that their abolition must not violate fundamental principles of justice deeply rooted in American tradition and conscience.

In this case, the Court determined that allowing a second trial on the same facts did not violate these principles, as it was intended to ensure a fair trial without legal error. However, it’s essential to note that this decision was later overturned in Benton v. Maryland, establishing that the double jeopardy prohibition applies to the states through the Fourteenth Amendment.

The Nature and Scope of Fourteenth Amendment Due Process; The Applicability of the Bill of Rights to the States

Palko v. Connecticut

Citation. Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288, 1937)

Brief Fact Summary.

Defendant Palko is tried and convicted of murder for a second time after state appeals previous murder conviction on same events.

Synopsis of Rule of Law.

The double jeopardy prohibition provision included in the Fifth Amendment is not applied to the states through the Fourteenth Amendment.


Defendant was indicted for murder in the first degree. The jury returned a conviction of murder in the second degree, for which he received a life sentence. Pursuant to state law, the State of Connecticut appealed and the Connecticut Supreme Court of Errors reversed the judgment and ordered a new trial. This court found harmful error to the state as a result of the exclusion of testimony as to a confession by the defendant, the exclusion of cross-examination testimony to impeach the defendant, and faulty jury instructions as to the difference between first and second degree murder. They ordered a second trial at which the jury sentenced the defendant to death. The defendant was granted certiorari to have the second conviction overturned.

Does the entire Fifth Amendment double jeopardy prohibition apply to the states through the Fourteenth Amendment?


No. The Supreme Court of the United States affirms the first degree murder conviction and the accompanying death sentence.

Two requirements need to be met for a state to appropriately choose to not include the prohibition on double jeopardy, or any other piece of the 5th Amendment, in its law. They do not have to incorporate such a right if it is not of the very essence of a scheme of ordered liberty, and if its abolishment would not violate a principal of justice so rooted in the traditions and conscience of the American people as to be ranked fundamental. Here, the Supreme Court saw the state’s allowing a second trial on the same facts as not violating fundamental principles of liberty and justice because it was only done to make sure that there was a trial without legal error.


The Supreme Court’s decision here embracing selective incorporation in stating that the Fifth Amendment double jeopardy prohibition was not entirely applicable to state law through the Fourteenth Amendment was overruled in Benton v. Maryland in 1969. That later case held that the double jeopardy prohibition was a fundamental concept in our constitutional heritage, and thus definitely applied to the states through the Fourteenth Amendment.

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