HKB
Other Attributes of a Fair Trial
"Due process of law," the Supreme Court has observed, "requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. * * * What is fair in one set of circumstances may be an act of tyranny in others."[963] Conversely, "as applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it * * * [the Court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial."[964] And on another occasion the Court remarked that "the due process clause," as applied in criminal trials "requires that action by a State through any of its agencies must be consistent with the fundamental principles of liberty and justice which lie at the base of our civil and political institutions, [and] which not infrequently are designated as 'the law of the land.'"[965]
Basic to the very idea of free government and among the immutable principles of justice which no State of the Union may disregard is the necessity of due "notice of the charge and an adequate opportunity to be heard in defense of it."[966] Consequently, when a State appellate court affirms a conviction on the ground that the information charged, and the evidence showed a violation of Sec. 1 of a penal law of the State, notwithstanding that the language of the information and the construction placed upon it at the trial clearly show that an offense under Sec. 2 of such law was charged, that the trial judge's instructions to the jury were based on Sec. 2, and that on the whole case it was clear that the trial and conviction in the lower court were for the violation of Sec. 2, not Sec. 1, such appellate court in effect is convicting the accused of a charge on which he was never tried, which is as much a violation of due process as a conviction upon a charge that was never made.[967] On the other hand, a prisoner who, after having been indicted on a charge of receiving stolen goods, abides by the prosecutor's suggestion and pleads guilty to the lesser offense of attempted second degree grand larceny, cannot later contend that a judgment of guilty of the latter offense was lacking in due process in that it amounted to a conviction of a crime for which he had never been indicted. In view of the "close kinship between the offense of larceny and that of receiving stolen property * * *, when related to the same stolen goods, the two crimes may fairly be said 'to be connected with the same transaction.'" It would be therefore, the Court concluded, "an exaltation of technical precision to an unwarranted degree to say that the indictment here did not inform the petitioner that he was charged with the substantial elements of the crime of larceny." Under these circumstances he must be deemed to have been given "reasonable notice and information of the specific charge against him and a fair hearing in open court."[968]
Excessive Bail, Cruel and Unusual Punishment, Sentence
The commitment to prison of a person convicted of crime, without giving him an opportunity pending an appeal, to furnish bail, does not violate the due process clause of the Fourteenth Amendment.[969] Likewise, a State, notwithstanding the limitations of that clause, retains a wide discretion in prescribing penalties for violation of its laws. Accordingly, a sentence of fourteen years' imprisonment for the crime of perjury has not been viewed as excessive nor as effecting any unconstitutional deprivation of the defendant's liberty;[970] nor has the imposition of successively heavier penalties upon "repeaters" been considered as partaking of a "cruel and unusual punishment."[971]