xt7msb3wtd0h_41 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/mets.xml https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2.dao.xml unknown 166 Cubic Feet 381 document boxes, seven textile items, three map folders, one artwork archival material 72m2 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Frederick Moore Vinson papers Economic stabilization. Elections -- United States -- Congresses. Judges -- Correspondence. Judges -- United States. Judicial opinions Judicial process -- United States Legislators -- Correspondence. New Deal, 1933-1939. World War, 1914-1918 -- Veterans. World War, 1939-1945. Adamson v. People of the state of California - no. 102 text Adamson v. People of the state of California - no. 102 2019 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2/Box_175/Folder_6_7/Multipage5328.pdf 1946 1946 1946 section false xt7msb3wtd0h_41 xt7msb3wtd0h ‘J way-mvmw

June 20, 1947.

WWI '20 THE common:
Rx: No. 102, Manson v. California.

At the suggestion of one of the mothers of the Conference,
I an deleting on p. 7 the following eenteneee:

"If courts under our Bonatitutionnl eyeten did not have
that power, the courts would be able to protect our
liberties only to the extent of the Bill of Rights and
the other definite prohibitions against legislation in
the Constitution. No doubt the legislative bodies would
carefully guard against other infringemte but it would
leave the responsibility solely to legiolaturee. the
Constitution avoids, 5..€§‘$1”éh-a,e poseible, the concentra—
tion of all power over my eubj e‘et. into the hands of
either the Judicial, the Legislative or the Executive.
The doctrine of. the separation of powers recognises
that ‘3er lies at the end of that road.‘







 No. 102 - Adamson v. People of the State of California

Reed Opinion circulated 3/26/h7 - Returned 3/27/h7 - ”This is my

present idea - Suggestion P. 8.2 C.J."

"With the great number of states saying "no” is it necessary to state
it this strongly?“ Reference to line, "we see no reason why comment

should not be made upon his silence,"



No. 102.—Oeroei~;n TERM, 1946.

Admiral Dewey Adamson, Appellant. Appeal from the
Supreme Court
of the State of'


People of the State of California.

[June ‘23. 1947.]

MR. JUs'rieE 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
murder in the first degree.1 After considering the same
ohjections to the conviction that are pressed here, the
sentence of death was affirmed by the Supreme Court of

the state. 227 Cal. (2) 478. {eview of that judgment by
this (“onrt was sought and allowed under Judicial Code
i237: 3% IV. S. (l. .5344? The provisions ot" (‘alit‘ornia

law which were challenged in the state prt’iceedings as in-
valid under the Fourteenth Amendment to the Federal
(‘onstitution are those ot‘ the state constitution and penal
code in the margin. ’l‘hev permit the failure of a defend—
ant to explain or to deny evidence against him to he
commented upon hv court and hv counsel and to he con-
sidered hv court and jury} 'l‘hcdet'cndant did not testify.

1There was alt'll>>lt)ll.

3'l‘his section :tllthoi'ixes appeal to this Court from the final judg-
ment of a .‘léllt‘ when the validity of a state statute is questioned on the
ground ot its heina' repugnant to the (‘onstitution ot' the linited States.
The section has hcen applied 
past convictions through cross—examitration and (c) be—
cattse 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," that state permission by law to the

"The ('alifornia law protects a defendant against compulsion to
testify. though allowing comment upon his failure to meet evidence
against him. The fifth Amendnn-nt forbids compulsion on a defend—
ant to testify. lint/ll v. (’m'lu/ Shifts. Ilt'i l'. .5. till}, oil]. 032: cf.
l)(l/'f.\‘ \, (In/[rd Stu/vs. ll‘_’\ l'. .5. 3.53, 71.57, .3953. A federal stat-
ute that grew out of the extension of permissible witnesses to include
those charged with oli'enses Iteu‘alives a presumption aa'ainst an accused
for failure to avail himself of the ria'ht to testify in his own defense.
:5 l'. .5. (5‘. § Mil"); lira/m v. If/n'lt-«l States, title L15. 2.57. It was this



court. counsel and jury to comment upon and consider
the failure of defendant “to explain or deny by his testi—
mony any evidence or facts in the case against him" would
infringe defendants privilege against self—incrimination'
under the Fifth Amendment if this were a trial in a court
of the l'nited States under a similar law. Such an as-
sumption does not determine appellant's rights under the
Fourteenth Amendment. It is settled law that the clause
of the Fifth .‘imendment. protectinga person against being
compelled to l)t‘ 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 ltecattse it is a personal privilege or immunity secured
by the l’ederal ('onstitution as one of the rights of man
that are listed in the liill of ltights.

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 inappli-
cahle to similar actions done by the states. Barron V.
Brill/"more. 7 Pet. 243: It'cldmmt v. (Vt/ted States, 322 U. S.
487. 490. With the adoption of the Fourteenth Amend—
ment. it was suggested that the dual citizenship
recognized liy its first sentence." secured for citiZens
federal protection for their elemental privileges and im—
munities of state citizenship. The Slant/liter House
('usts“ decided. contrary to the suggestion. that these

statute which is interpretml to protect the defendant against comment
for his claim of privilege. ll’f/xott v. ('Ia/[cI/ Slates, H‘.) I... S. [30, 60;
Jolt/mm \‘. flit/Vltt/ Stu/4x, 1:18 l', S. li\‘.l, 11'”.

7 ".r\ll persons ltorn or naturalized in the l‘nited States, and subject
to the jurisdiction thereof. are citizens of the United States and of the
State wherein they reside.”

‘ lti Wall. Iii}. 'l‘lie lu'iet' of .\lr. l'Vellows for the plaintiff in error
set out the legislatiw history in an effort to show that the purpose
of lllt first section oi the li‘ourteenth .\mendment was to put the

"ltights of ('itizt-ns” under the protection of the l'nited States, It




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Fourteenth Ainenrlnient proteets hitq privilege against;
self—inerimination. The title proeess clause of the Four—
teenth Amendment, howeyer. tloes not (lraw all the rights
of the l'erleral Bill of liifilllS antler its proteetion. That
eontention was matle anrl reieetetl itt l’ttl/Jo \'. ('Uttm t'lit-ttt,
Sitt2 l'. F. 3310. 322;. It was rejeeterl with eitation ot' the
eases exeltttlin: several of the rights, proteetetl by the Bill
ot‘ ltights. against infringement by the National (loy—
ernment. Nothing has been ealletl to our attention that
either the framers ot' the l’onrteenth Amentlment or the
states that arlopterl intentletl its (live proeess elattse to
thaw within its seope the earlier antenrlntents to the (lon—
stittttion. l’r/j/xo heltl that sneh provisions of the Bill of

llie'hts as were “implieit in the eoneept ot' ot‘tlet‘erl liberty.”

p, 3);.3. beeame set-tire from state interterenee by the
elatzse. ))lll it heltl nothing more. It eottrts antler our
eonstittttional system vlitl not haye that power. the eottrts
\\'(Htltl be able to proteet ottr liberties only to the extent
of the llill ol' ltiszhts antl the other tlef’inite prohibitions
against legislation in the ('onstittttion. No rlottbt the
legrislatiye ltotlies wonlrl earel'ttlly gnartl against other in—
l'rinuement: bttt it wonltl leave the responsibility solely
to legislatures. 'l‘he (‘onstittttion ayoitls. as nineh as
possible. the eoneentration of all power over any snbjeet
into the hamls ol‘ either the .larlieial. the Legislative 01‘
the l‘lXt't'ttllYt‘. 'l‘he tloetrine ot' the separation of powers
reeounixes that tyranny lies at the entl of that total.
Speeilieally. the tlltt' proeess elanse rloes not protect,
by yirttze (it its tnere existenee the aeetlsetls t't'eetloni from
giving testitttony by eompt:lsion in state trials that is se-
(‘ttt't'll to him against l'etleral interlierenee by the Filth
.\lllt'l|tiltl(‘llli 'l'tt't'ttttty/ \1 i\.(ll' Just/L 311 lv. 5. 73,
{tit 7] ll: l‘r/l/co y. (Mattie/teal,sup/71,1), 323. For a state
to rerpzire testimony from an aeettsetl is not neeessarily
a breaeh ol' :1 states obligation to give a hair trial.
il‘heret'ore, we inns‘ examine the et't'eet of the California.



law applied in this trial to see whether the comment on
failure to testify violates the protection against state ac—
tion that the due process clause does grant to an
aeeused. The due proeess elause forliids eompulsion to
testify liy fear of hurt. tortttre or exhaustion.” It forbids
any other type of eoereion that falls within the scope of
due proeess.“ (‘alifornia follows .\nglo—.>\tneriean legal
tradition in exetrsing defendants in eriminal prosecutions
from ('ompulsory testimony. ('f. \l'igntore (3d ed.)

§ 333.32. That is a matter of legal poliey and not heeausé
of the reqttiretnents of dtte process under the fourteenth
Amendment.“ So our inqttiry ifs direeted. not at the
l)l'()£ltl question of the eonstitutionality of eompulsory tes-
timony from the aeettsed under the due proeess elause,
f)!” to the eonstitutionality of the provision of the (‘ali-
fornia law that permits eonnnent upon his failure to
testify. It is. of eourse, logieally possiltle that while an
aeensed might he required. under appropriate penalties,
to snlnnit himself as, a witness without a Violation of due
proet-ss. eomment liy judge or jury on inferenees to be
drawn from his failure to testify. in jurisdietions where

an aeeused's privilege against self—inerintittation is pro-
teeted. tnigttt deny due proeess. For example. a statute
might deelare that a permitted refusal to testify would
eotnpel an aeeeptanee of the truth of the prosecution's

‘—' It'll/[4 \_ Terr/s, Illtl I'. S 3310: ll'fl‘U/I'N \'_ ill/.x's'is-sippf. 397 [7. S.
T\: its/«emf! \. Yin/asset; IL": L". 5. Hi}, 1.313; Ashcroft \. Tennessee,

337 l'. S. 27‘].


"See _l/«//«/«.\-/,'/ \ , M II' for/.3311 t'. 8., eoneurring opt at ll-t, dissent
at «15%: line/NIH: r \'. New l'm‘lx, xix/mt, at lit); l’ul/t‘o \'. Connecticut,
six/ml. :tl I133; (ill/ft l' V. [ff/inns. ‘Jl ll. l‘i. L37,

State aetion Ittllsf ”ilt' eonsistent with the fundamental pi'itu-iples of
liltt-rty and insure \\'fllt'lt tie at the ltase of all our ei\'tl and politieal
lH>fllelttH< and not intrt-qttently are designated as 'law of the land.’ ”
1/. M rt \. lam-mm, :7: t'. s. :31; :no. V

“ Tut/willy V. Ni U,’ ./( I'c‘t _’/, sup/'11, pp 110—12.



Generally: comment on the failure of an accused to
testify is l’orhitlden in American juristlictions.” This
arises from state constitutional or statutory provisions
similar in character to the federal provisions. Fifth
Amendment and 25' l'. S. t". mm. California. however,
is one of a few states that permit limited comment upon
a defendant’.s failure to testify.” That permission is nar—

rotv. The (‘alit’ornia law is set out in note 3 and autlmrizes
comment hy court and counsel upon the “failure of the
defendant to explain ortleny hy his testimony any evidence

or facts in the case against him." This does not involve
any presumption. rehuttahle or irrehuttahle. either of guilt-
or of the truth of any fact. that is offered in evidence.
(Vltlltlllill‘t‘ Tot \‘. [Witt/l Watts. 31‘.) ll. 5‘. 403. «170. It
allows inferences to he drawn from proven facts. Because
of this clause, the court can direct the jury‘s attention to
V.'lt:tt(’\'t't' evidence there may he that a defendant could
deny and the prosecution can argue as to inferences that
may he drawn from the accused's failure to testify. (‘om-
pare (Windmill \'. l’m’tw/ NIH/(us. 242 l'. S. 470. 402795;
[t‘thtlel v. (Unit (J Slot, 5‘. 27] l'. S. 494. 497. There is here
no lack of power in the trial court to adjudgg‘e and no denial
of a. hearing. (‘alifornia has tn'eserihed a method for ad—
vising the jury in the search for truth. However sound
may he the legislative conclusion that an accused should
not he compelled in any criminal case to he a witness
against himself, we see no reason why comment should not
le made upon his silence. It seems quite natural that

"i’ \illl \Viuniore, sap/1t. 412.

l" The cases and statutory references are collected in \'lll Wimnore,
six/rm. at pp. llil «/ .w 1/, New Jersey. (lhio and Vermont permit
comment. The tlltt-slltttl of permitting" comment upon the i'ailnre of
an accused to testin has heen a matter for consideration in recent.
years. See llt‘ttot'ls of American llal' Association (lttillt lilT; l’ro—
t‘t‘t‘tlllt:‘<. .\lIIl‘l'lt‘:tll l.a\\‘ lIt“lllllt'. “Well. BUB: llt't’llt‘l'. ('onnnent
l'pon l’ailure of Act-used in 'l‘estit‘v. iil Alieh. l,, llev. lt): lirnce. ltight
tok‘onttttetlt (111lllt'l“:tlllll't‘t)lllllt‘ llel'entlant to ’litwtlf}! ltf.) 33H.



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 prosecu—
tion evidence may be of facts that may be beyond the
knowledge of the accused. If so. his failure to testify
would haye’little if any weight. But the facts may be
such as are necessarily in the knowledge of the accused.
[n that ease a failure to explain would point to an inability

Appellant sets out the circumstances of this case. how—
ever. to show coercion and unfairness in permitting coni-
ment. The guilty person was not seen at the place and
time of the crime. There was evidence. howeyer. that
entrance to the place or room where the crime was com-
mitted might have been obtained through a small door.
It was freshly broken. Evidence showed that six finger—
prints on the door were petitioner's. (,‘ertain diamond
rings were missing from the tleeeaseds possession. There
was evidence that appellant. sometim‘ 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
beeanse he would be subjected to a cross—exaltiination as to

former crimes to impeach his veracity and the evidence
so produced might well bring" about his conviction. Such
et'oss—exalnination is allowable in ('alifornia. l’top/e y.
Alf/L’H/NIHI. sit/wt. l-tll, 'l‘herefore. appellant contends the
(‘alifornia statute permitting comment denies him due

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 aeeordanee with its: own ideas of the most
etiieient administration of eriminal justiee. The purpose
of due prneess is not to proteet an aeeused against a proper
eonvietinn but against an unfair eonvietion. \Vhen evi-
denee is l)(‘f()l'(' a jury that threatens eonvietion. it does
not seem unfair to require him to ehoose hetween leaving
the adverse evidenee unexplained and suhjeeting himself
to impeaelnnent through diselosure of former erimes. ln—
deed. this is a dilemma with which any defendant maybe
faeed. lf faets. adverse to the defendant. are proven by
the proseeutinn. there may he no way to explain them
favorably to the aeeused exeept hv a witness who may be
vulnerable to impeaelnnent on eross—examination. The
defendant must then deeide whether or not to use sueh a
witness. The faet that the witness may also he the de-
fendant makes the ehoiee more (littieult but a denial of due
proeess does not emerge from the eireumstanees.17

There is no hasis in the (‘alifnrnia law for appellant's
ohjeetinn on due proeess or other grounds that the statu—
torv authorization to Comment on the failure to explain
or deny adverse testimony shifts the burden of proof or
the dut_v to go forward with the evidence. Failure of the
aeeused tn testify is not an admission of the truth of the ad-
verse evidenee. lnstruetions told the jury that the burden
of~prnnf remained upon the {state and the presumption of
innoeenee with the aeeused. (‘onnnent on failure to deny

prnven faets does tint in (‘alifornia tend to supply any
missing element of proof of guilt. People v. .‘ldmnson,
XII/H71. :t-s‘tt-i-‘JTL it old" direets attention to the strength
of the evident-e for the prnseeution or to the w .‘akness of
that for the defense. The Supreme (fourt of (‘alifornia

”('nnnnent ltet‘e did not follow a grant of privilege that earried
immunity trnm eonnnent. The ehniee l)('l\\'t'(‘l| giving evidenee and
remaining" silent was an open ehniee. There was no sneh possilile
tni~leadin£ of the defendant as we enndemned in JU/tlto‘tJ/I v. baited
Sta/tux; ins L? 5.1\€I,1'.I.3—5tt)_



called attention to the fact that the prosecutors argument
approached the horderline in a statement that might have
ll(‘(‘ll construed as asserting “that the jury should infer
guilt solely from defendant's silence.” That court felt
that it was improhahle the jury was misled into such an
understanding of their power. We Shall not interfere with
such a conclusion. l’mp/e v. .tdumson, supra. 494—05.
l’inallv. appellant contends that due process of law was
denied him hv 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 jurv. The
lower part ot' a \votmins stoel-zing' was found under the
victim's hodv. The top was not found. The corpse was
hareleaucd. The tops t'rom defendant's room did not
match the lower part t'o'1nd under the dead hod); The
(’alit'ornia cotzrt held that the tops were admissible as

evidence hecatzse this "interest in \votncnsstocking" tops is

a circumstance that tends to identity defendant" as the
perpetrator ot' the crime. We do not thinlc the introduc—
tion of this evidence violated any l'ederal constitutional

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




 No. 102. Adamson v. California

The following are a few comments on Justice Reed's Opinion
in the Adamson case:

1. page 8, lines 16—28 beginning "However sound may be the

legislative conclusion, etc.". The language here seems to

express the View that levislation of the type in question is

desirable. As I understand the question before the Court, we

are concerned only vith the question of constitutional power, and

I see no reason for the Court to express a View as to the lav's
fdesirability,which nould seem to be a legislative matter. The

same material could be presented by saying the framers of

the Cal. constitution and the legislators could reasonably

believe etc. etc.

2. p. 9.10— In the discussion as to the fairness of the
legislation, it seems to me that it would be worth mentioning
that even if the judge or prosecutor does not comment on

a defendant's failure to take the stand, that circumstance is
likely to be noticed by the jury anyway. That isn’t a conclusive
argument on the point, but as long as consideration of the
factors going to the fairness of the legislation is concerned,
it seems to me the probable reaction of the jury in any event

is worth some mention}

3. p. 3. Footnote 6 is eypressed pretty obscurely. I gather
that what is being said is that although the Fifth Amendment
forbids compulsory testimcny, cases which have refused to allow
comment on failure to testify in the federal courts have been
bases upon a federal statute rather than the constitutional

A. p. 7. In footnote 16 only three states, in
California, are listed as permitting comment.
on this point but I am of the impression that
more allow the practice. I am ca ling this to
Justice Reed's law clerk.

" .;/L Mml/ ‘ 1 r1 4
we! 1/ “1/9/47 “HIV“





N0. 102.7001'013ER TERM, 1946.

Appeal from the;
Supreme Court
of the State of

Admiral Dewey Adamson, Appellant
People of the State of California.

[June ~—.1947.]
Mn. .lt's’ricr: Fitxxiirt'n'ricn. concurring.

less than ten years ago. Mr. Justice Cardozo announced
as settled constitutional law that while the Fifth Amend—
ment “which is not directed to the states. but solely to
the federal aoyernnient" proyides that no person shall
be compelled in any criminal case to l)‘, a witness against
himself. the process of law assured by the Fourteenth
Amendment does not require such immunity from self—
criniinatimr. “. in prosecutionsby a state. the exemp-
tion will fail if the state elects to end it." Pal/r0 y. (Von,-
nccticul. 303 T'. S. Slit. 322*24. Mr. Justice Cardozo
spoke for 'the (‘ourt consisting of Mr. (‘hief Justice
Hughes. and Mclleynolds. Brandeis. Sutherland. Stone,
{oberts Black. .lJ. (Mr. Justice Butler dissented.) The
matter no longer 'alled for discussion: a reference to
Twining y. New J( meg]. 211 l'. S. 78) decided thirty years
before the I’utf/ro case. sufficed.

All decisions of this ('ourt do not haye equal intrinsic
authority. The 'l'zrfm'ny/ case shows the judicial process
at its bestwweompreher1si\'e briefs and powerful arguments
on both sides. followed by long deliberation. resulting in
an opinion. by Mr. Justice Moody. which at once aroused,
and has eyer since retained. recognition as one of the