Criminal Law Class Notes 8/29/03


The principle of legality


What is the role of statutes in a judicial system?  How do we draft statutes?  How do we interpret statutes?  What is the relationship of statutes to common law?


The essence of the principle of legality is the idea of nulle poena sine lege: “no crime without law”, meaning in particular “no crime without preexisting law”.


This principle trumps any other rules that we’ve learned if there is a conflict.


In contemporary society, this means that courts don’t create crimes.


Statutes must be written clearly, and interpreted to the benefit of the accused.


Commonwealth v. Mochan


What was the allegation against Mochan?


What is an indictment?  It is literally a piece of paper stating the charges that are being brought against a defendant.  It comes from a grand jury which hears the evidence and votes to indict.


Some states use an information instead of an indictment.


Grand juries are a very controversial part of the criminal justice system.


At common law, there were exactly eight felonies.  Now, virtually anything is a crime.


Back to Mochan


There are many common law crimes that Mochan may have committed.  But there’s a statutory justification for bringing this case.


There’s this section in the Pennsylvania Penal Code, § 1101, that grandfathers in common law crimes.  Statute beats common law where there are statutes, but otherwise, we incorporate the common law by reference.


Is the principle of legality violated here?


What if the legislature passed a statute forbidding any behavior “which injures or tends to injure the pubic or which openly outrages decency”.


Would Mochan have been surprised to find out that his conduct would openly outrage decency in 1955?


The doctrine of lenity – if there are two ways to interpret a statute where one way would favor the State and one way would favor the accused, the court must side with the accused.  This is what Justice Scalia calls a “tiebreaker”, in that it only applies when you’re right on the razor’s edge.


The problem of the principle of legality is that if you have to rely on a prosecutor or judge to interpret criminal statutes, you give them enormous power.


As of 1983, almost all states have abolished common law offenses.  The Model Penal Code says that common law crimes are out the window.  That doesn’t mean that the common law is irrelevant.


Aren’t there other ways to temper the power of prosecutors, judges, and cops other than eliminating all flexibility?


Keeler v. Superior Court


Why is this called Keeler v. Superior Court?  Keeler petitioned for a writ of prohibition.  He wanted the murder prosecution prohibited, but the Superior Court rejected the petition, and Keeler appealed to the California Supreme Court.


Why does the defendant say he is not guilty of murder?


What is the definition of murder?


Murder is the killing of a human being by another human being with malice aforethought.


Every word of this definition will turn out to be important later.  In the present case, Keeler is arguing that he did not kill a human being, and thus he cannot be tried for murder.


How did the California Penal Code in the statutes define “human being”?  It didn’t.  Where did the court look for a definition of “human being”?  It looks at old, old precedent.


The first California Penal Code was enacted in 1850.  The wording of the murder statute has remained constant since that time, and the words “human being” were never defined in that statute.


The court reasons that since the legislature, in drafting the murder statute, was codifying common law, they must have had in mind the meaning of the words as they were understood in 1850 in common law.


So the court tells us that common law says a human being is someone who has been born alive.


Why do the State and the dissenters argue that the court should not be limited to the common law?  What is the argument for saying that “human being” should include the fetus that Keeler killed?


Why didn’t the common law treat a fetus as a human being?  What has changed such that we’re no longer stuck with the common law definition?


At that time, a fetus could not survive outside the womb until perhaps very late in the pregnancy.  Now, medicine has reached the point that the fetus could survive at a much earlier stage.  Therefore, the common law appears outdated.


What is the response of the majority?  They give two reasons that Keeler should win anyway.


First, they make a “jurisdictional” argument: it is not the role of the court to make crimes, rather, it is the responsibility of the legislature.


Hypothetical: Dressler hits a chipmunk with his car.  “A chipmunk is now a human being.”  He’s indicted for murder.  This is a violation of the principle of legality.


Is it “false”, “unusual” or “surprising” to expand the definition of “human being” to include fetuses?


An important comment: the principle of legality trumps all other rules, including utilitarianism, retributivism, and anything else.  No matter how much we despise somebody or hate what they’ve done, if we’re not confident that there was a previously existing law prohibiting a certain conduct, you may not punish them for that conduct.


What was the constitutional problem?  The due process clause says that potential criminals must have “fair warning” of what is against the law.


Let’s say just before Keeler stomps on his wife’s abdomen, he thinks to himself: “Is what I’m about to do criminal?”  Where would he have had to turn to find out the answer to that question?  First he would turn to the statutes, then to Blackstone and the common law.  He would find that he’s in the clear as long as he makes sure the fetus comes out dead.


What did Justice Burke say in his dissent?


He talks hypothetically about corpses and whether it is possible to murder a corpse.  He says that over time, what we consider a corpse changes, yet we need not go back and redefine the statutes.


Furthermore, he argues, if we consider the elderly or the dying “human beings”, we can also consider a viable fetus a “human being”.


Don’t forget that Keeler was part of the abortion debate.  The decision on Keeler was influenced by the effect it might have on future rulings on abortion.


Burke says that the fetus has “unbounded potential for life”.  Really, we would want to say that it is alive.  So why is it not a human being?


If we think of human life as living on its own, then the fetus has not started its life as a “human being”.


Where should we look to find out what makes something a human being rather than something else?  Dressler says he doesn’t trust a doctor to tell him what a human being is.  Dressler thinks it should come from morality and religion, whether philosophically or theologically based.


The main point is that it’s the legislature that represents the people, not the appointed justices.  The legislature’s job is to find a consensus.


Why can’t the courts represent a “safety net” when the legislature fails to act or acts inappropriately?


In California, the murder statute was amended.  Would Justice Burke be happy with the new definition?


The new statute suggests that murder can happen a heck of a lot sooner than viability and a heck of a lot sooner than quickening.


Furthermore, the statute suggests that a fetus is not a human being.  This is not merely a technical point.  It suggests that everywhere else in the California Penal Code the words “human being” do not include fetuses.  The amended statute does not give the fetus the special status of a human being.


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