U.S. Supreme Court Rochin v. California, 342
U.S. 165 (1952) Rochin v. California No. 83 Argued October 16,
1951 Decided January 2,
1952 342
U.S. 165 CERTIORARI TO THE DISTRICT COURT OF
APPEAL FOR THE SECOND APPELLATE DISTRICT OF
CALIFORNIA Syllabus Having "some information" that petitioner was selling narcotics,
three state officers entered his home and forced their way into the
bedroom occupied by him and his wife. When asked about two capsules
lying on a bedside table, petitioner put them in his mouth. After
an unsuccessful struggle to extract them by force, the officers
took petitioner to a hospital, where an emetic was forced into his
stomach against his will. He vomited two capsules which were found
to contain morphine. These were admitted in evidence over his
objection, and he was convicted in a state court of violating a
state law forbidding possession of morphine. Held: The conviction is reversed, because it was
obtained by methods violative of the Due Process Clause of the
Fourteenth Amendment. Pp. 342 U. S.
166 -174. 101 Cal. App.
2d 140 , 225 P.2d 1, reversed.

															In a California state court, petitioner was convicted of
violating a state law forbidding the possession of morphine. The
District Court of Appeal affirmed. 101 Cal. App.
2d 140 , 225 P.2d 1. The State Supreme Court denied a review.
This Court granted certiorari. 341 U.S. 939. Reversed, p. 342 U. S.
174 . Page 342 U. S. 166 MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

															Having "some information that [the petitioner here] was selling
narcotics," three deputy sheriffs of the County of Los Angeles, on
the morning of July 1, 1949, made for the two-story dwelling house
in which Rochin lived with his mother, common law wife, brothers
and sisters. Finding the outside door open, they entered and then
forced open the door to Rochin's room on the second floor. Inside
they found petitioner sitting partly dressed on the side of the
bed, upon which his wife was lying. On a "night stand" beside the
bed, the deputies spied two capsules. When asked "Whose stuff is
this?", Rochin seized the capsules and put them in his mouth. A
struggle ensued in the course of which the three officers "jumped
upon him" and attempted to extract the capsules. The force they
applied proved unavailing against Rochin's resistance. He was
handcuffed and taken to a hospital. At the direction of one of the
officers, a doctor forced an emetic solution through a tube into
Rochin's stomach against his will. This "stomach pumping" produced
vomiting. In the vomited matter were found two capsules which
proved to contain morphine.

															Rochin was brought to trial before a California Superior Court,
sitting without a jury, on the charge of possessing "a preparation
of morphine" in violation of the California Health and Safety Code
1947, § 11500. Rochin was convicted and sentenced to sixty days'
imprisonment. The chief evidence against him was the two capsules.
They were admitted over petitioner's objection, although the means
of obtaining them was frankly set forth in the testimony by one of
the deputies, substantially as here narrated.

															On appeal, the District Court of Appeal affirmed the conviction,
despite the finding that the officer

															"were Page 342 U. S. 167 guilty of unlawfully breaking into and entering defendant's
room, and were guilty of unlawfully assaulting and battering
defendant while in the room,"

															and "were guilty of unlawfully assaulting, battering, torturing
and falsely imprisoning the defendant at the alleged hospital." 101 Cal. App.
2d 140 , 143, 225 P.2d 1, 3. One of the three judges, while
finding that "the record in this case reveals a shocking series of
violations of constitutional rights", concurred only because he
felt bound by decisions of his Supreme Court. These, he asserted,
"have been looked upon by law enforcement officers as an
encouragement, if not an invitation, to the commission of such
lawless acts." Ibid. The Supreme Court of California
denied without opinion Rochin's petition for a hearing. [ Footnote 1 ] Two justice dissented from
this denial, and, in doing so, expressed themselves thus:

															". . . a conviction which rests upon evidence of incriminating
objects obtained from the body of the accused by physical abuse is
as invalid as a conviction which rests upon a verbal confession
extracted from him by such abuse. . . . Had the evidence forced
from defendant's lips consisted of an oral confession that he
illegally possessed a drug . . . , he would have the protection of
the rule of law which excludes coerced confessions from evidence.
But because the evidence forced from his lips consisted of real
objects, the People of this state are permitted to base a
conviction upon it. [We] find no valid ground of distinction
between a verbal confession extracted by physical abuse and a
confession wrested from defendant's body by physical abuse."

															101 Cal. App. 2d 143, 149-150, 225 P.2d 913, 917-918. Page 342 U. S. 168 This Court granted certiorari, 341 U.S. 939, because a serious
question is raised as to the limitations which the Due Process
Clause of the Fourteenth Amendment imposes on the conduct of
criminal proceedings by the States.

															In our federal system, the administration of criminal justice is
predominantly committed to the care of the States. The power to
define crimes belongs to Congress only as an appropriate means of
carrying into execution its limited grant of legislative powers.
U.S.Const. Art. I, § 8, cl. 18. Broadly speaking, crimes in the
United States are what the laws of the individual States make them,
subject to the limitations of Art. I, § 10, cl. 1, in the original
Constitution, prohibiting bills of attainder and ex post
facto laws, and of the Thirteenth and Fourteenth
Amendments.

															These limitations, in the main, concern not restrictions upon
the powers of the States to define crime, except in the restricted
area where federal authority has preempted the field, but
restrictions upon the manner in which the States may enforce their
penal codes. Accordingly, in reviewing a State criminal conviction
under a claim of right guaranteed by the Due Process Clause of the
Fourteenth Amendment, from which is derived the most far-reaching
and most frequent federal basis of challenging State criminal
justice,

															"we must be deeply mindful of the responsibilities of the States
for the enforcement of criminal laws, and exercise with due
humility our merely negative function in subjecting convictions
from state courts to the very narrow scrutiny which the Due Process
Clause of the Fourteenth Amendment authorizes." Malinski v. New York, 324 U. S. 401 , 324 U. S. 412 , 324 U. S. 418 .
Due process of law, "itself a historical product," Jackman v.
Rosenbaum Co., 260 U. S. 22 , 260 U. S. 31 , is
not to be turned into a destructive dogma against the States in the
administration of their systems of criminal justice. Page 342 U. S. 169 However, this Court too has its responsibility. Regard for the
requirements of the Due Process Clause

															"inescapably imposes upon this Court an exercise of judgment
upon the whole course of the proceedings [resulting in a
conviction] in order to ascertain whether they offend those canons
of decency and fairness which express the notions of justice of
English-speaking peoples even toward those charged with the most
heinous offenses." Malinski v. New York, supra, at 324 U. S.
416 -417. These standards of justice are not
authoritatively formulated anywhere as though they were specifics.
Due process of law is a summarized constitutional guarantee of
respect for those personal immunities which, as Mr. Justice Cardozo
twice wrote for the Court, are "so rooted in the traditions and
conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U. S. 97 , 291 U. S. 105 ,
or are "implicit in the concept of ordered liberty." Palko v.
Connecticut, 302 U. S. 319 , 302 U. S. 325 .
[ Footnote 2 ]

															The Court's function in the observance of this settled
conception of the Due Process Clause does not leave us without
adequate guides in subjecting State criminal procedures to
constitutional judgment. In dealing not with the machinery of
government, but with human rights, the absence of formal
exactitude, or want of fixity of meaning, is not an unusual, or
even regrettable, attribute of constitutional provisions. Words
being symbols do not speak without a gloss. On the one hand, the
gloss may be the deposit of history, whereby a term gains technical
content. Thus the requirements of the Sixth and Seventh Amendments
for trial by jury in the federal Page 342 U. S. 170 courts have a rigid meaning. No changes or chances can alter the
content of the verbal symbol of "jury" -- a body of twelve men who
must reach a unanimous conclusion if the verdict is to go against
the defendant. [ Footnote 3 ] On
the other hand, the gloss of some of the verbal symbols of the
Constitution does not give them a fixed technical content. It
exacts a continuing process of application.

															When the gloss has thus not been fixed, but is a function of the
process of judgment, the judgment is bound to fall differently at
different times and differently at the same time through different
judges. Even more specific provisions, such as the guaranty of
freedom of speech and the detailed protection against unreasonable
searches and seizures, have inevitably evoked as sharp divisions in
this Court as the least specific and most comprehensive protection
of liberties, the Due Process Clause.

															The vague contours of the Due Process Clause do not leave judges
at large. [ Footnote 4 ] We may
not draw on our merely personal and private notions and disregard
the limits that bind judges in their judicial function. Even though
the concept of due process of law is not final and fixed, these
limits are derived from considerations that are fused in the whole
nature of or judicial process. See Cardozo, Page 342 U. S. 171 The Nature of the Judicial Process; The Growth of the Law; The
Paradoxes of Legal Science. These are considerations deeply rooted
in reason and in the compelling traditions of the legal profession.
The Due Process Clause places upon this Court the duty of
exercising a judgment, within the narrow confines of judicial power
in reviewing State convictions, upon interests of society pushing
in opposite directions.

															Due process of law, thus conceived, is not to be derided as
resort to a revival of "natural law." [ Footnote 5 ] To believe that this judicial exercise of
judgment could be avoided by freezing "due process of law" at some
fixed stage of time or thought is to suggest that the most
important aspect of constitutional adjudication is a function for
inanimate machines, and not for judges, for whom the independence
safeguarded by Article III of the Constitution was designed and who
are presumably guided by established standards of judicial
behavior. Even cybernetics has not yet made that haughty claim. To
practice the requisite detachment and to achieve sufficient
objectivity no doubt demands of judges the habit of self-discipline
and self-criticism, incertitude that one's own views are
incontestable, and alert tolerance toward views not shared. But Page 342 U. S. 172 these are precisely the presuppositions of our judicial process.
They are precisely the qualities society has a right to expect from
those entrusted with ultimate judicial power.

															Restraints on our jurisdiction are self-imposed only in the
sense that there is from our decisions no immediate appeal short of
impeachment or constitutional amendment. But that does not make due
process of law a matter of judicial caprice. The faculties of the
Due Process Clause may be indefinite and vague, but the mode of
their ascertainment is not self-willed. In each case, "due process
of law" requires an evaluation based on a disinterested inquiry
pursued in the spirit of science, on a balanced order of facts
exactly and fairly stated, on the detached consideration of
conflicting claims, see Hudson County Water Co. v.
McCarter, 209 U. S. 349 , 209 U. S. 355 ,
on a judgment not ad hoc and episodic, but duly mindful of
reconciling the needs both of continuity and of change in a
progressive society.

															Applying these general considerations to the circumstances of
the present case, we are compelled to conclude that the proceedings
by which this conviction was obtained do more than offend some
fastidious squeamishness or private sentimentalism about combatting
crime too energetically. This is conduct that shocks the
conscience. Illegally breaking into the privacy of the petitioner,
the struggle to open his mouth and remove what was there, the
forcible extraction of his stomach's contents -- this course of
proceeding by agents of government to obtain evidence is bound to
offend even hardened sensibilities. They are methods too close to
the rack and the screw to permit of constitutional
differentiation.

															It has long since ceased to be true that due process of law is
heedless of the means by which otherwise relevant and credible
evidence is obtained. This was not true even before the series of
recent cases enforced the constitutional principle that the States
may not base convictions upon Page 342 U. S. 173 confessions, however much verified, obtained by coercion. These
decisions are not arbitrary exceptions to the comprehensive right
of States to fashion their own rules of evidence for criminal
trials. They are not sports in our constitutional law, but
applications of a general principle. They are only instances of the
general requirement that States, in their prosecutions, respect
certain decencies of civilized conduct. Due process of law, as a
historic and generative principle, precludes defining, and thereby
confining, these standards of conduct more precisely than to say
that convictions cannot be brought about by methods that offend "a
sense of justice." See Mr. Chief Justice Hughes, speaking
for a unanimous Court in Brown v. Mississippi, 297 U. S. 278 , 297 U. S.
285 -286. It would be a stultification of the
responsibility which the course of constitutional history has cast
upon this Court to hold that in order to convict a man the police
cannot extract by force what is in his mind but can extract what is
in his stomach. [ Footnote
6 ]

															To attempt in this case to distinguish what lawyers call "real
evidence" from verbal evidence is to ignore the reasons for
excluding coerced confessions. Use of involuntary verbal
confessions in State criminal trials is constitutionally obnoxious
not only because of their unreliability. They are inadmissible
under the Due Process Clause even though statements contained in
them may be independently established as true. Coerced confessions
offend the community's sense of fair play and decency. So here, to
sanction the brutal conduct which, naturally enough, was condemned
by the court whose judgment is before us would be to afford
brutality the cloak of law. Nothing Page 342 U. S. 174 would be more calculated to discredit law, and thereby to
brutalize the temper of a society.

															In deciding this, case we do not heedlessly bring into question
decisions in many States dealing with essentially different, even
if related, problems. We therefore put to one side cases which have
arisen in the State courts through use of modern methods and
devices for discovering wrongdoers and bringing them to book. It
does not fairly represent these decisions to suggest that they
legalize force so brutal and so offensive to human dignity in
securing evidence from a suspect as is revealed by this record.
Indeed, the California Supreme Court has not sanctioned this mode
of securing a conviction. It merely exercised its discretion to
decline a review of the conviction. All the California judges who
have expressed themselves in this case have condemned the conduct
in the strongest language.

															We are not unmindful that hypothetical situations can be
conjured up standing imperceptibly from the circumstances of this
case and, by gradations, producing practical differences despite
seemingly logical extensions. But the Constitution is "intended to
preserve practical and substantial rights, not to maintain
theories." Davis v. Mills, 194 U.
S. 451 , 194 U. S.
457 .

															On the facts of this case, the conviction of the petitioner has
been obtained by methods that offend the Due Process Clause. The
judgment below must be reversed. Reversed. MR. JUSTICE MINTON took no part in the consideration or decision
of this case.

															[ Footnote 1 ]

															The petition for a hearing is addressed to the discretion of the
California Supreme Court, and a denial has apparently the same
significance as the denial of certiorari in this Court. Cal.Const.
Art. VI, §§ 4, 4c; "Rules on Appeal," Rules 28, 29, 36 Cal. 2d
24-25 (1951). See 3 Stan.L.Rev. 243-269 (1951).

															[ Footnote 2 ]

															What is here summarized was deemed by a majority of the Court,
in Malinski v. New York, 324 U. S. 401 , 324 U. S. 412 and 324 U. S. 438 ,
to be "the controlling principles upon which this Court reviews on
constitutional grounds a state court conviction for crime." They
have been applied by this Court many times, long before and since
the Malinski case.

															[ Footnote 3 ]

															This is the federal jury required constitutionally, although
England and at least half of the States have, in some civil cases,
juries which are composed of less than 12 or whose verdict may be
less than unanimous. See County Courts Act, 1934, 24 &
25 Geo. V, c. 53, § 93; Arizona State Legislative Bureau,
Legislative Briefs No. 4, Grand and Petit Juries in the United
States, v-vi (Feb. 15, 1940); The Council of State Governments, The
Book of the States, 1950-1951, 515.

															[ Footnote 4 ]

															Burke's observations on the method of ascertaining law by judges
are pertinent:

															"Your committee do not find any positive law which binds the
judges of the courts in Westminster-hall publicly to give a
reasoned opinion from the bench in support of their judgment upon
matters that are stated before them. But the course hath prevailed
from the oldest times. It hath been so general and so uniform that
it must be considered as the law of the land."

															Report of the Committee of Managers on the Causes of the
Duration of Mr. Hastings' Trial, 4 Speeches of Edmund Burke (1816),
200-201.

															And Burke had an answer for those who argue that the liberty of
the citizen cannot be adequately protected by the flexible
conception of due process of law:

															". . . the English jurisprudence has not any other sure
foundation, nor consequently the lives and properties of the
subject any sure hold, but in the maxims, rules, and principles,
and juridical traditionary line of decisions. . . ." Id. at 201.

															[ Footnote 5 ]

															Morris R. Cohen, " Jus Naturale Redivivum, " 25
Philosophical Review 761 (1916), and "Natural Rights and Positive
Law," Reason and Nature 401-426 (1631); F. Pollock, "The History of
the Law of Nature," Essays in the Law 31-79 (1922).

															[ Footnote 6 ]

															As to the difference between the privilege against
self-crimination protected, in federal prosecutions, under the
Fifth Amendment and the limitations which the Due Process Clause of
the Fourteenth Amendment imposes upon the States against the use of
coerced confessions, see Brown v. Mississippi, supra, 297
U.S. at 297 U. S.
285 .

															MR. JUSTICE BLACK, concurring. Adamson v. California, 332 U. S.
46 , 332 U. S.
68 -123, sets out reasons for my belief that state, as
well as federal, courts and law enforcement officers must obey the
Fifth Amendment's command that "No person . . . shall be
compelled Page 342 U. S. 175 in any criminal case to be a witness against himself." I think a
person is compelled to be a witness against himself not only when
he is compelled to testify, but also when as here, incriminating
evidence is forcibly taken from him by a contrivance of modern
science. Cf. Boyd v. United States, 116 U.
S. 616 ; Counselman v. Hitchcock, 142 U.
S. 547 , 142 U. S. 562 ; Bram v. United States, 168 U. S. 532 ; Chambers v. Florida, 309 U. S. 227 .
California convicted this petitioner by using against him evidence
obtained in this manner, and I agree with MR. JUSTICE DOUGLAS that
the case should be reversed on this ground.

															In the view of a majority of the Court, however, the Fifth
Amendment imposes no restraint of any kind on the states. They
nevertheless hold that California's use of this evidence violated
the Due Process Clause of the Fourteenth Amendment. Since they hold
as I do in this case, I regret my inability to accept their
interpretation without protest. But I believe that faithful
adherence to the specific guarantees in the Bill of Rights insures
a more permanent protection of individual liberty than that which
can be afforded by the nebulous standards stated by the
majority.

															What the majority hold is that the Due Process Clause empowers
this Court to nullify any state law if its application "shocks the
conscience," offends "a sense of justice," or runs counter to the
"decencies of civilized conduct." The majority emphasize that these
statements do not refer to their own consciences, or to their
senses of justice and decency. For we are told that "we may not
draw on our merely personal and private notions"; our judgment must
be grounded on "considerations deeply rooted in reason and in the
compelling traditions of the legal profession." We are further
admonished to measure the validity of state practices not by our
reason or by the traditions of the legal profession, but by "the
community's sense of fair play and decency"; by the "traditions and
conscience of our people"; or by "those canons of decency and
fairness Page 342 U. S. 176 which express the notions of justice of English-speaking
peoples." These canons are made necessary, it is said, because of
"interests of society pushing in opposite directions."

															If the Due Process Clause does vest this Court with such
unlimited power to invalidate laws, I am still in doubt as to why
we should consider only the notions of English-speaking peoples to
determine what are immutable and fundamental principles of justice.
Moreover, one may well ask what avenues of investigation are open
to discover "canons" of conduct so universally favored that this
Court should write them into the Constitution? All we are told is
that the discovery must be made by an "evaluation based on a
disinterested inquiry pursued in the spirit of science, on a
balanced order of facts."

															Some constitutional provisions are stated in absolute and
unqualified language, such, for illustration, as the First
Amendment, stating that no law shall be passed prohibiting the free
exercise of religion or abridging the freedom of speech or press.
Other constitutional provisions do require courts to choose between
competing policies, such as the Fourth Amendment, which, by its
terms, necessitates a judicial decision as to what is an
"unreasonable" search or seizure. There is, however, no express
constitutional language granting judicial power to invalidate every
state law of every kind deemed "unreasonable" or contrary to the
Court's notion of civilized decencies; yet the constitutional
philosophy used by the majority has, in the past, been used to deny
a state the right to fix the price of gasoline, Williams v.
Standard Oil Co. of Louisiana, 278 U.
S. 235 ; and even the right to prevent bakers from
palming off smaller for larger loaves of bread, Jay Burns
Baking Co. v. Bryan, 264 U. S. 504 .
These cases, and others, [ Footnote
2/1 ] Page 342 U. S. 177 show the extent to which the evanescent standards of the
majority's philosophy have been used to nullity state legislative
programs passed to suppress evil economic practices. What
paralyzing role this same philosophy will play in the future
economic affairs of this country is impossible to predict. Of even
graver concern, however, is the use of the philosophy to nullify
the Bill of Rights. I long ago concluded that the accordion-like
qualities of this philosophy must inevitably imperil all the
individual liberty safeguards specifically enumerated in the Bill
of Rights. [ Footnote 2/2 ]
Reflection and recent decisions [ Footnote 2/3 ] of this Court sanctioning abridgment of
the freedom of speech and press have strengthened this
conclusion.

															[ Footnote 2/1 ] See n. 12 of dissenting opinion, Adamson v.
California, supra, at p. 332 U. S.
83 .

															[ Footnote 2/2 ] E.g., Adamson v. California, supra, and cases cited in
the dissent.

															[ Footnote 2/3 ] American Communications Ass'n v. Douds, 339 U.
S. 382 ; Feiner v. New York, 340 U.
S. 315 ; Dennis v. United States, 341 U.
S. 494 .

															MR. JUSTICE DOUGLAS, concurring.

															The evidence obtained from this accused's stomach would be
admissible in the majority of states where the question has been
raised. [ Footnote 3/1 ] So far as
the reported cases reveal, the only states which would probably
exclude the evidence would be Arkansas, Iowa, Michigan, and
Missouri. [ Footnote 3/2 ] Page 342 U. S. 178 Yet the Court now says that the rule which the majority of the
states have fashioned violates the "decencies of civilized
conduct." To that, I cannot agree. It is a rule formulated by
responsible courts with judges as sensitive as we are to the proper
standards for law administration.

															As an original matter, it might be debatable whether the
provision in the Fifth Amendment that no person "shall be compelled
in any criminal case to be a witness against himself" serves the
ends of justice. Not all civilized legal procedures recognize it.
[ Footnote 3/3 ] But the choice was
made by the Framers, a choice which sets a standard for legal
trials in this country. The Framers made it Page 342 U. S. 179 a standard of due process for prosecutions by the Federal
Government. If it is a requirement of due process for a trial in
the federal courthouse, it is impossible for me to say it is not a
requirement of due process for a trial in the state courthouse.
That was the issue recently surveyed in Adamson v.
California, 332 U. S. 46 . The
Court rejected the view that compelled testimony should be
excluded, and held, in substance, that the accused in a state trial
can be forced to testify against himself. I disagree. Of course, an
accused can be compelled to be present at the trial, to stand, to
sit, to turn this way or that, and to try on a cap or a coat. See Holt v. United States, 218 U.
S. 245 , 218 U. S.
252 -253. But I think that words taken from his lips,
capsules taken from his stomach, blood taken from his veins, are
all inadmissible provided they are taken from him without his
consent. They are inadmissible because of the command of the Fifth
Amendment.

															That is an unequivocal, definite and workable rule of evidence
for state and federal courts. But we cannot, in fairness, free the
state courts from that command and yet excoriate them for flouting
the "decencies of civilized conduct" when they admit the evidence.
That is to make the rule turn not on the Constitution, but on the
idiosyncrasies of the judges who sit here.

															The damage of the view sponsored by the Court in this case may
not be conspicuous here. But it is part of the same philosophy that
produced Betts v. Brady, 316 U. S. 455 ,
denying counsel to an accused in a state trial against the command
of the Sixth Amendment, and Wolf v. Colorado, 338 U. S.
25 , allowing evidence obtained as a result of a search
and seizure that is illegal under the Fourth Amendment to be
introduced in a state trial. It is part of the process of erosion
of civil rights of the citizen in recent years.

															[ Footnote 3/1 ] See People v. One 1941 Mercury Sedan, 74 Cal. App. 2d
199 , 168 P.2d 443 (pumping of accused's stomach to recover
swallowed narcotic); Rochin v. California, 101 Cal. App.
2d 140 , 225 P.2d 1 (pumping of accused's stomach to recover
swallowed narcotic); People v. Tucker, 88 Cal. App. 2d
333 , 198 P.2d 941 (blood test to determine intoxication); State v. Ayres, 70 Idaho 18, 211 P.2d 142 (blood test to
determine intoxication); Davis v. State, 189 Md. 640, 57
A.2d 289 (blood typing to link accused with murder); Skidmore
v. State, 59 Nev. 320, 92 P.2d 979 (examination of accused for
venereal disease); State v. Sturtevant, 96 N.H. 99, 70
A.2d 909 (blood test to determine intoxication); State v.
Alexander, 7 N.J. 585, 83 A.2d
441 (blood typing to establish guilt); State v.
Gatton, 60 Ohio App. 192 (commenting on refusal to submit to
blood test or urinalysis to determine intoxication); State v.
Nutt, 78 Ohio App. 336, 65 N.E.2d 675 (commenting on refusal
to submit to urinalysis to determine intoxication); but cf.
Booker v. City of Cincinnati, 1 Ohio Supp. 152 (examination
and urinalysis to determine intoxication); State v. Cram, 176 Or. 577, 160 P.2d 283 (blood test to determine intoxication); Commonwealth v. Statti, 166 Pa.Super. 577, 73 A.2d 688
(blood typing linking accused to assault).

															[ Footnote 3/2 ] Bethel v. State, 178 Ark. 277, 10 S.W.2d 370
(examination for venereal disease); State v. Height, 117
Iowa 650, 91 N.W. 935 (examination for venereal disease); State
v. Weltha, 228 Iowa 519, 292 N.W. 148 (blood test to determine
intoxication, limiting rules on search and seizure); but cf.
State v. Benson, 230 Iowa 1168, 300 N.W. 275 (comment on
refusal to submit to blood test to determine intoxication); People v. Corder, 244 Mich. 274, 221 N.W. 309 (examination
for venereal disease); but see People v. Placido, 310
Mich. 404, 408, 17 N.W.2d 230, 232; State v. Newcomb, 220
Mo. 54, 119 S.W. 405 (examination for venereal disease); State
v. Matsinger, Mo., 180 S.W. 856 (examination for venereal
disease).

															[ Footnote 3/3 ] See Ploscowe, The Investigating Magistrate in European
Criminal Procedure, 33 Mich.L.Rev. 1010 (1935).

Summary: In Rochin v. California, the Supreme Court reversed the conviction of a man for possessing morphine, as the evidence against him was obtained through forced stomach pumping by police officers. The Court held that the methods used to obtain the evidence violated the Due Process Clause of the Fourteenth Amendment, setting a precedent for protecting civil liberties and rights, even in state trials.


U.S. Supreme Court Johnson v. Zerbst, 304
U.S. 458 (1938) Johnson v. Zerbst No. 699 Argued April 4, 1938 Decided May 23, 1938 304
U.S. 458 CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE FIFTH
CIRCUIT Syllabus 1. A person charged with crime in a federal court is entitled by
the Sixth Amendment to the assistance of counsel for his defense.
P. 304 U. S.
462 .

															2. This right may be waived, but the waiver must be an
intelligent one, and whether there was such must depend upon the
particular facts and circumstances, including background,
experience, and conduct of accused. P. 304 U. S.
464 .

															3. It is a duty of a federal court in the trial of a criminal
case to protect the right of the accused to counsel, and, if he has
no counsel, to determine whether he has intelligently and
competently waived the right. It would be fitting that such
determination be made a matter of record. P. 304 U. S.
465 .

															4. If the accused is not represented by counsel and has not
competently and intelligently waived his constitutional right, the
Sixth Amendment stands as a jurisdictional bar to a valid
conviction and sentence depriving him of his life or his liberty.
P. 304 U. S.
468 .

															5. The question whether the assistance of counsel was
intelligently and competently waived by the prisoner at his trial
may be determined in habeas corpus proceedings on proofs aliunde. P. 304 U. S.
467 .

															92 F.2d 748, reversed.

															CERTIORARI, 303 U.S. 629, to review the affirmance of a judgment
of the District Court discharging a writ of habeas corpus. See 13 F. Supp.
253 .

															MR. JUSTICE BLACK delivered the opinion of the Court.

															Petitioner, while imprisoned in a federal penitentiary, was
denied habeas corpus by the District Court. [ Footnote 1 ] Later, Page 304 U. S. 459 that court granted petitioner a second hearing, prompted by

															"the peculiar circumstances surrounding the case and the desire
of the court to afford opportunity to present any additional facts
and views which petitioner desired to present."

															Upon consideration of the second petition, the court found that
it did "not substantially differ from the" first, "and for the
reasons stated in the decision in that case" the second petition
was also denied.

															Petitioner is serving sentence under a conviction in a United
States District Court for possessing and uttering counterfeit
money. It appears from the opinion of the District Judge denying
habeas corpus that he believed petitioner was deprived, in the
trial court, of his constitutional right under the provision of the
Sixth Amendment that "In all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for
his defence." [ Footnote 2 ]
However, he held that proceedings depriving petitioner of his
constitutional right to assistance of counsel were not
sufficient

															"to make the trial void and justify its annulment in a habeas
corpus proceeding, but that they constituted trial errors or
irregularities which could only be corrected on appeal."

															The Court of Appeals affirmed, [ Footnote 3 ] and we granted certiorari due to the
importance of the questions involved. [ Footnote 4 ]

															The record discloses that:

															Petitioner and one Bridwell were arrested in Charleston, South
Carolina, November 21, 1934, charged with Page 304 U. S. 460 feloniously uttering and passing four counterfeit twenty-dollar
Federal Reserve notes and possessing twenty-one such notes. Both
were then enlisted men in the United States Marine Corps, on leave.
They were bound over to await action of the United States Grand
Jury, but were kept in jail due to inability to give bail. January
21, 1935, they were indicted; January 23, 1935, they were taken to
court, and there first given notice of the indictment; immediately
were arraigned, tried, convicted and sentenced that day to four and
one-half years in the penitentiary, and January 25, were
transported to the Federal Penitentiary in Atlanta. While counsel
had represented them in the preliminary hearings before the
commissioner in which they -- some two months before their trial --
were bound over to the Grand Jury, the accused were unable to
employ counsel for their trial. Upon arraignment, both pleaded not
guilty, said that they had no lawyer, and -- in response to an
inquiry of the court -- stated that they were ready for trial. They
were then tried, convicted and sentenced, without assistance of
counsel.

															"Both petitioners lived in distant cities of other states, and
neither had relatives, friends, or acquaintances in Charleston.
Both had little education, and were without funds. They testified
that they had never been guilty of nor charged with any offense
before, and there was no evidence in rebuttal of these statements.
[ Footnote 5 ]"

															In the habeas corpus hearing, petitioner's evidence developed
that no request was directed to the trial judge to appoint counsel,
but that such request was made to the District Attorney, who
replied that, in the State of trial (South Carolina), the court did
not appoint counsel unless the defendant was charged with a capital
crime. The District Attorney denied that petitioner made
request Page 304 U. S. 461 to him for counsel or that he had indicated petitioner had no
right to counsel. The Assistant District Attorney testified that
Bridwell "cross-examined the witnesses"; and, in his opinion,
displayed more knowledge of procedure than the normal layman would
possess. He did not recall whether Bridwell addressed the jury or
not, but the clerk of the trial court testified "that Mr. Johnson
[Bridwell?] conducted his defence about as well as the average
layman usually does in cases of a similar nature." Concerning what
he said to the jury and his cross-examination of witnesses,
Bridwell testified

															"I tried to speak to the jury after the evidence was in during
my trial over in the Eastern District of South Carolina. I told the
jury, 'I don't consider myself a hoodlum as the District Attorney
has made me out several times.' I told the jury that I was not a
native of New York as the District Attorney stated, but was from
Mississippi, and only stationed for government service in New York.
I only said fifteen or twenty words. I said I didn't think I was a
hoodlum, and could not have been one of very long standing because
they didn't keep them in the Marine Corps."

															"I objected to one witness' testimony. I didn't ask him any
questions, I only objected to his whole testimony. After the
prosecuting attorney was finished with the witness, he said, 'Your
witness,' and I got up and objected to the testimony on the grounds
that it was all false, and the Trial Judge said any objection I had
I would have to bring proof or disproof."

															Reviewing the evidence on the petition for habeas corpus, the
District Court said [ Footnote
6 ] that, after trial, petitioner and Johnson

															". . . were remanded to jail, where they asked the jailer to
call a lawyer for them, but were not permitted to contact one. They
did not, however, undertake to get any message to the judge. " Page 304 U. S. 462 ". . . January 25th, they were transported by automobile to the
Federal Penitentiary in Atlanta, Ga. arriving . . . the same
day."

															"There, as is the custom, they were placed in isolation and so
kept for sixteen days without being permitted to communicate with
anyone except the officers of the institution, but they did see the
officers daily. They made no request of the officers to be
permitted to see a lawyer, nor did they ask the officers to present
to the trial judge a motion for new trial or application for appeal
or notice that they desired to move for a new trial or to take an
appeal."

															"On May 15, 1935, petitioners filed applications for appeal
which were denied because filed too late."

															The " . . . time for filing a motion for new trial and for
taking an appeal has been limited to three and five days."
[ Footnote 7 ] One. The Sixth Amendment guarantees that, "In all
criminal prosecutions, the accused shall enjoy the right . . . to
have the Assistance of Counsel for his defence." This is one of the
safeguards of the Sixth Amendment deemed necessary to insure
fundamental human rights of life and liberty. Omitted from the
Constitution as originally adopted, provisions of this and other
Amendments were submitted by the first Congress convened under that
Constitution as essential barriers against arbitrary or unjust
deprivation of human rights. The Sixth Amendment stands as a
constant admonition that, if the constitutional safeguards it
provides be lost, justice will not "still be done." [ Footnote 8 ] It embodies a realistic
recognition of the obvious truth that the average defendant does
not have the professional legal skill to protect Page 304 U. S. 463 himself when brought before a tribunal with power to take his
life or liberty, wherein the prosecution is presented by
experienced and learned counsel. That which is simple, orderly and
necessary to the lawyer, to the untrained layman may appear
intricate, complex and mysterious. Consistently with the wise
policy of the Sixth Amendment and other parts of our fundamental
charter, this Court has pointed to " . . . the humane policy of the
modern criminal law . . ." which now provides that a defendant " .
. . if he be poor, . . . may have counsel furnished him by the
state . . . not infrequently . . . more able than the attorney for
the state." [ Footnote 9 ]

															The

															". . . right to be heard would be, in many cases, of little
avail if it did not comprehend the right to be heard by counsel.
Even the intelligent and educated layman has small and sometimes no
skill in the science of law. If charged with crime, he is
incapable, generally, of determining for himself whether the
indictment is good or bad. He is unfamiliar with the rules of
evidence. Left without the aid of counsel, he may be put on trial
without a proper charge, and convicted upon incompetent evidence,
or evidence irrelevant to the issue or otherwise inadmissible. He
lacks both the skill and knowledge adequately to prepare his
defence, even though he have a perfect one. He requires the guiding
hand of counsel at every step in the proceedings against him.
[ Footnote 10 ]"

															The Sixth Amendment withholds from federal courts, [ Footnote 11 ] in all criminal
proceedings, the power and authority to deprive an accused of his
life or liberty unless he has or waives the assistance of
counsel. Page 304 U. S. 464 Two. There is insistence here that petitioner waived
this constitutional right. The District Court did not so find. It
has been pointed out that "courts indulge every reasonable
presumption against waiver" of fundamental constitutional rights,
[ Footnote 12 ] and that we
"do not presume acquiescence in the loss of fundamental rights."
[ Footnote 13 ] A waiver is
ordinarily an intentional relinquishment or abandonment of a known
right or privilege. The determination of whether there has been an
intelligent waiver of the right to counsel must depend, in each
case, upon the particular facts and circumstances surrounding that
case, including the background, experience, and conduct of the
accused. Patton v. United States, 281 U.
S. 276 , decided that an accused may, under certain
circumstances, consent to a jury of eleven and waive the right to
trial and verdict by a constitutional jury of twelve men. The
question of waiver was there considered on direct appeal from the
conviction, and not by collateral attack on habeas corpus. However,
that decision may be helpful in indicating how, and in what manner,
an accused may -- before his trial results in final judgment and
conviction -- waive the right to assistance of counsel. The Patton ease noted approvingly a state court decision
[ Footnote 14 ] pointing out
that the humane policy of modern criminal law had altered
conditions which had existed in the "days when the accused could
not testify in his own behalf, [and] was not furnished Counsel,"
and which had made it possible to convict a man when he was
"without money, without counsel, without ability to summon
witnesses and not permitted to tell his own story, . . ." Page 304 U. S. 465 The constitutional right of an accused to be represented by
counsel invokes, of itself, the protection of a trial court in
which the accused -- whose life or liberty is at stake -- is
without counsel. This protecting duty imposes the serious and
weighty responsibility upon the trial judge of determining whether
there is an intelligent and competent waiver by the accused. While
an accused may waive the right to counsel, whether there is a
proper waiver should be clearly determined by the trial court, and
it would be fitting and appropriate for that determination to
appear upon the record. Three. The District Court, holding petitioner could not
obtain relief by habeas corpus, said:

															"It is unfortunate if petitioners lost their right to a new
trial through ignorance or negligence, but such misfortune cannot
give this Court jurisdiction in a habeas corpus case to review and
correct the errors complained of."

															The purpose of the constitutional guaranty of a right to counsel
is to protect an accused from conviction resulting from his own
ignorance of his legal and constitutional rights, and the guaranty
would be nullified by a determination that an accused's ignorant
failure to claim his rights removes the protection of the
Constitution. True, habeas corpus cannot be used as a means of
reviewing errors of law and irregularities -- not involving the
question of jurisdiction -- occurring during the course of trial;
[ Footnote 15 ] and the "writ
of habeas corpus cannot be used as a writ of error." [ Footnote 16 ] These principles,
however, must be construed and applied so as to preserve -- not
destroy -- constitutional safeguards of human life and liberty. The
scope of inquiry in habeas corpus proceedings has been broadened --
not narrowed -- since the adoption of the Sixth Page 304 U. S. 466 Amendment. In such a proceeding, "it would be clearly erroneous
to confine the inquiry to the proceedings and judgment of the trial
court," [ Footnote 17 ] and
the petitioned court has

															"power to inquire with regard to the jurisdiction of the
inferior court, either in respect to the subject matter or to the
person, even if such inquiry . . . [involves] an examination of
facts outside of, but not inconsistent with, the record. [ Footnote 18 ]"

															Congress has expanded the rights of a petitioner for habeas
corpus, [ Footnote 19 ] and
the

															". . . effect is to substitute for the bare legal review that
seems to have been the limit of judicial authority under the common
law practice, and under the Act of 31 Car. II, c. 2, a more
searching investigation, in which the applicant is put upon his
oath to set forth the truth of the matter respecting the causes of
his detention, and the court, upon determining the actual facts, is
to 'dispose of the party as law and justice require.'"

															"There being no doubt of the authority of the Congress to thus
liberalize the common law procedure on habeas corpus in order to
safeguard the liberty of all persons within the jurisdiction of the
United States against infringement through any violation of the
Constitution or a law or treaty established thereunder, it results
that, under the sections cited, a prisoner in custody pursuant to
the final judgment of a state court of criminal jurisdiction may
have a judicial inquiry in a court of the United States into the
very truth and substance of the causes of his detention, although
it may become necessary to look behind and beyond the record of his
conviction to a sufficient extent to test the jurisdiction of the
state court to proceed to a judgment against him. . . . " Page 304 U. S. 467 ". . . it is open to the courts of the United States upon an
application for a writ of habeas corpus to look beyond forms and
inquire into the very substance of the matter. . . . [ Footnote 20 ]"

															Petitioner, convicted and sentenced without the assistance of
counsel, contends that he was ignorant of his right to counsel, and
incapable of preserving his legal and constitutional rights during
trial. Urging that -- after conviction -- he was unable to obtain a
lawyer; was ignorant of the proceedings to obtain new trial or
appeal and the time limits governing both, and that he did not
possess the requisite skill or knowledge properly to conduct an
appeal, he says that it was -- as a practical matter -- impossible
for him to obtain relief by appeal. If these contentions be true in
fact, it necessarily follows that no legal procedural remedy is
available to grant relief for a violation of constitutional rights
unless the courts protect petitioner's rights by habeas corpus. Of
the contention that the law provides no effective remedy for such a
deprivation of rights affecting life and liberty, it may well be
said -- as in Mooney v. Holohan, 294 U.
S. 103 , 294 U. S. 113 -- that it "falls with the premise." To deprive a citizen of his
only effective remedy would not only be contrary to the
"rudimentary demands of justice," [ Footnote 21 ] but destructive of a constitutional guaranty
specifically designed to prevent injustice.

															Since the Sixth Amendment constitutionally entitles one charged
with crime to the assistance of counsel, compliance with this
constitutional mandate is an essential jurisdictional prerequisite
to a federal court's authority to deprive an accused of his life or
liberty. When this Page 304 U. S. 468 right is properly waived, the assistance of counsel is no longer
a necessary element of the court's jurisdiction to proceed to
conviction and sentence. If the accused, however, is not
represented by counsel and has not competently and intelligently
waived his constitutional right, the Sixth Amendment stands as a
jurisdictional bar to a valid conviction and sentence depriving him
of his life or his liberty. A court's jurisdiction at the beginning
of trial may be lost "in the course of the proceedings" due to
failure to complete the court -- as the Sixth Amendment requires --
by providing counsel for an accused who is unable to obtain
counsel, who has not intelligently waived this constitutional
guaranty, and whose life or liberty is at stake. [ Footnote 22 ] If this requirement of the
Sixth Amendment is not complied with, the court no longer has
jurisdiction to proceed. The judgment of conviction pronounced by a
court without jurisdiction is void, and one imprisoned thereunder
may obtain release by habeas corpus. [ Footnote 23 ] A judge of the United States -- to whom a
petition for habeas corpus is addressed -- should be alert to
examine "the facts for himself when if true as alleged they make
the trial absolutely void." [ Footnote 24 ]

															It must be remembered, however, that a judgment cannot be
lightly set aside by collateral attack, even on habeas corpus. When
collaterally attacked, the judgment of a court carries with it a
presumption of regularity. [ Footnote 25 ] Where a defendant, without counsel,
acquiesces in a trial resulting in his conviction and later seeks
release by the extraordinary remedy of habeas corpus, the burden of
proof rests upon him to establish that he did not competently and
intelligently waive his constitutional Page 304 U. S. 469 right to assistance of counsel. If, in a habeas corpus hearing,
he does meet this burden and convinces the court by a preponderance
of evidence that he neither had counsel nor properly waived his
constitutional right to counsel, it is the duty of the court to
grant the writ.

															In this case, petitioner was convicted without enjoying the
assistance of counsel. Believing habeas corpus was not an available
remedy, the District Court below made no findings as to waiver by
petitioner. In this state of the record, we deem it necessary to
remand the cause. If -- on remand -- the District Court finds from
all of the evidence that petitioner has sustained the burden of
proof resting upon him and that he did not competently and
intelligently waive his right to counsel, it will follow that the
trial court did not have jurisdiction to proceed to judgment and
conviction of petitioner, and he will therefore be entitled to have
his petition granted. If petitioner fails to sustain this burden,
he is not entitled to the writ.

															The cause is reversed and remanded to the District Court for
action in harmony with this opinion. Reversed. MR. JUSTICE REED concurs in the reversal.

															MR. JUSTICE McREYNOLDS is of opinion that the judgment of the
court below should be affirmed.

															MR. JUSTICE BUTLER is of the opinion that the record shows that
petitioner waived the right to have counsel, that the trial court
had jurisdiction, and that the judgment of the Circuit Court of
Appeals should be affirmed.

															MR. JUSTICE CARDOZO took no part in the consideration or
decision of this case.

															[ Footnote 1 ] 13 F. Supp.
253 .

															[ Footnote 2 ]

															The Sixth Amendment of the Constitution provides that,

															"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining Witnesses in his favor, and to have the
Assistance of Counsel for his defence."

															[ Footnote 3 ]

															92 F.2d 748.

															[ Footnote 4 ]

															303 U.S. 629.

															[ Footnote 5 ]

															Opinion of the District Judge, 13 F. Supp.
253 , 254.

															[ Footnote 6 ] 13 F. Supp.
253 , 254.

															[ Footnote 7 ]

															13 F. Supp. at 256; see Rules of Practice and Procedure
(Criminal Appeals Rules), adopted May 7, 1934, II, III.

															[ Footnote 8 ] Cf. Palko v. Connecticut, 302 U.
S. 319 , 302 U. S.
325 .

															[ Footnote 9 ] Patton v. United States, 281 U.
S. 276 , 281 U. S.
308 .

															[ Footnote 10 ] Powell v. Alabama, 287 U. S. 45 , 287 U. S. 68 ,
69.

															[ Footnote 11 ] Cf., 32 U. S. The
Mayor, 7 Pet. 243, 32 U. S. 247 ; Edwards v.
Elliott , 21 Wall. 532, 88 U. S.
557 [ Footnote 12 ] Aetna Ins. Co. v. Kennedy, 301 U.
S. 389 , 301 U. S. 393 ; Hodges v. Easton, 106 U. S. 408 , 106 U. S.
412 .

															[ Footnote 13 ] Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U. S. 292 , 301 U. S.
307 .

															[ Footnote 14 ] Hack v. State, 141 Wis. 346, 351, 124 N.W. 492.

															[ Footnote 15 ] Cf. 28 U. S. 3
Pet.193; Knewal v. Egan, 268 U. S. 442 ; Harlan v. McGourin, 218 U. S. 442 .

															[ Footnote 16 ] Woolsey v. Best, 299 U. S. 1 , 299 U. S. 2 .

															[ Footnote 17 ] Frank v. Mangum, 237 U. S. 309 , 237 U. S.
327 .

															[ Footnote 18 ] In re Mayfield, 141 U. S. 107 , 141 U. S. 116 ; Cuddy, Petitioner, 131 U. S. 280 .

															[ Footnote 19 ]

															28 U.S.C. ch. 14, § 451, et seq. [ Footnote 20 ] Frank v. Mangum, supra, 237 U. S. 330 , 237 U. S. 331 ; cf. Moore v. Dempsey, 261 U. S. 86 ; Mooney v. Holohan, 294 U. S. 103 ; Hans Nielsen, Petitioner, 131 U.
S. 176 .

															[ Footnote 21 ] Cf. Mooney v. Holohan, supra, 294 U. S.
112 .

															[ Footnote 22 ] Cf., Frank v. Mangum, supra, 237 U. S.
327 .

															[ Footnote 23 ] Hans Nielsen, Petitioner, supra. [ Footnote 24 ] Cf. Moore v. Dempsey, 261 U. S. 86 , 261 U. S. 92 ; Patton v. United States, 281 U. S. 276 , 281 U. S. 312 , 281 U. S. 313 .

															[ Footnote 25 ] Cuddy, Petitioner, supra.

Summary:
Here is a summary of the key points from the Johnson v. Zerbst case:

- A person charged with a federal crime has the right to legal assistance for their defense under the Sixth Amendment.
- This right to counsel can be waived, but the waiver must be made knowingly and voluntarily, considering the individual's background, experience, and behavior.
- Federal courts have a duty to ensure that the accused has not waived their right to counsel without a full understanding of the consequences. It is recommended that this determination be formally recorded.
- If the accused has not validly waived their right to counsel, their conviction and sentence may be deemed invalid, and they may be released through a writ of habeas corpus.
- The determination of whether the accused intelligently waived their right to counsel can be made during habeas corpus proceedings, considering evidence from outside the original trial record.