1. Palko v. Connecticut, (1937)

2. Facts: Palko was convicted of second-degree murder. The state of Connecticut appealed his conviction, seeking a higher degree conviction. This was made possible by the state’s local statute that allowed the state to appeal criminal convictions, as well as the defendant. The second-degree murder conviction was set aside, and he was retried and convicted of first degree murder.

3. Procedural Posture: Palko brought an action to declare the procedural statute unconstitutional as a violation of his 5th amendment guarantee against double jeopardy.

4. Issue: Whether the action of the state in this case amounted to double jeopardy prohibited by the 5th amendment.

5. Holding: No.

6. ∏ Argument: The retrial violated the 5th amendment, and whatever is forbidded by the 5th amendment is also forbidden by the 14th. Moreover, whatever would have been forbidden to the federal government in the bill of rights is now forbidden to the states by operation of the 14th amendment.

7. Majority Reasoning: There is no such general rule that the 14th amendment incorporates the bill of rights and applies all of its provisions to the states. Certain rights, such as that of a grand jury indictment and trial by jury are important, but have not been applied to the states through the 14th amendment because they are not “fundamental.” The rights that are absorbed by the 14th amendment are those which are indespensible to freedom and liberty, such as freedom of thought and speech. In this particular case, the particular procedure used by the state was not so harsh as to prevent the fair administration of criminal justice. The state has a right to prosecute a case against a criminal until it ends in a decision that is free from substantial legal error.