Adamson v. California (1947)
Admiral Dewey Adamson was convicted of first-degree murder by the State of California and sentenced to death. During the course of his trial, the prosecutor pointed out to the jury that Adamson had failed to take the witness stand and refute the evidence that the state had adduced against him. This practice was authorized by California’s “comment law” allowing prosecutors to comment on the failure of a defendant to testify on his or her own behalf. Over the objection of Adamson’s counsel that such comment penalized the defendant’s right to be free of compulsory self-incrimination (which includes a defendant’s right not to testify at trial), the California courts upheld Adamson’s conviction and an appeal was taken to the U.S. Supreme Court.
Almost forty years earlier, in Twining v. New Jersey (1908), the Supreme Court had held that the Self-incrimination Clause of the Fifth Amendment of the Bill of Rights was not applicable in state criminal proceedings and that comment on the failure of a defendant to testify did not violate the Due Process Clause of the Fourteenth Amendment. Relying largely on the Twining case, the majority of the Supreme Court affirmed Dewey Adamson’s conviction and rejected the argument of his counsel that the Self-incrimination Clause applied to the states via the Due Process Clause and rendered comment laws unconstitutional.
Dissenting from the Court’s decision, Justice Hugo Black argued that it had been the intent of the framers of the Fourteenth Amendment to make all of the rights in the Bill of Rights applicable to the states (the “total incorporation” theory), including the Self-incrimination Clause of the Fifth Amendment, and that Adamson’s conviction should have been reversed. Black’s dissent was joined by Justices William O. Douglas, Wiley Rutledge, and Frank Murphy, while Justice Felix Frankfurter attacked Black’s “total incorporation” position, arguing that the Due Process Clause of the Fourteenth Amendment guaranteed only the right to a fair trial in state criminal proceedings and thus protected only some rights similar but not identical to some of those in the Bill of Rights.
The Adamson case was the high-water mark of the total incorporation position, since it there received more votes in its favor than either before or since, and the position was never adopted by a majority of the Supreme Court. The Court did subsequently, however, adopt the selective incorporation position, holding that most but not all of the rights in the Bill of Rights applied as restrictions on the states via the Due Process Clause of the Fourteenth Amendment. Applying that approach, the Court ultimately reversed Adamson v. California, ruling in Malloy v. Hogan, 378 U.S. 1 (1964) that the Self-incrimination Clause of the Fifth Amendment did in fact apply in state criminal proceedings, and in Griffin v. California, 380 U.S. 609 (1965) the Court overturned Adamson v. California 332 U.S. 46 (1947) ruling that comment laws were unconstitutional because they penalized a defendant’s right to be free from compulsory self-incrimination. Admiral Dewey Adamson, however, had been executed by the State of California on December 9, 1949.
Louis Henkin, “‘Selective Incorporation’ in the Fourteenth Amendment,” Yale Law Journal 73, no. 1 (1963): 74–88; Jacob W. Landynski, “Due Process and the Concept of Ordered Liberty,” Hofstra Law Review2:1 (Winter 1974): 1-66; and David M. O’Brien, Constitutional Law and Politics: Struggles for Power and Governmental Accountability (New York, NY: W. W. Norton & Company, 1991)
Richard C. Cortner
Last updated: May 2018