332 U.S 46 (1947), argued 15–16 Jan. 1947, decided 23 June 1947 by vote of 5 to 4; Reed for the Court, Frankfurter concurring, Black, Douglas, Murphy, and Rutledge in dissent. Adamson reflected the intense debate over whether the Fourteenth Amendment's Due Process Clause incorporates specific provisions of the Bill of Rights, thus making them applicable to state criminal proceedings. The question was whether the prosecution's calling the jury's attention to the defendant's refusal to testify violated the Fifth Amendment's ban on self-incrimination. The majority reiterated the holding of Palko v. Connecticut (1937) that the Fourteenth Amendment “does not draw all the rights of the federal Bill of Rights under its protection,” but incorporates only those that are so fundamental that they are “implicit in the concept of ordered liberty” (p. 54). It upheld the conviction because the prosecutor's comments did not result in an “unfair trial.”
Justice Hugo Black argued in dissent that the due process clause should be read to guarantee that “no state could deprive its citizens of the privileges and protections of the Bill of Rights” and therefore argued that the Fourteenth Amendment incorporates “the full protection of the Fifth Amendment's provision against compelling evidence from an accused to convict him of a crime” (p. 75). The Court has never adopted Black's “total incorporation” approach. It has, however, incorporated nearly all the individual components of the Bill of Rights under a doctrine called “selective incorporation.” Thus, in Griffin v. California (1965) the Court held that the Fourteenth Amendment does not permit state prosecutors to call the jury's attention to a defendant's failure to testify.
Thomas Y. Davies