jan 22 class notes

find the charge, find the statute and then break down into the elements...

Keeler v. Sup Ct

"Murder is the unlawful killing of a human being with malice aforethought."

1. Unlawful (yup - he's not a doctor, it's not self-defense, he's not an executioner... he has no authorization to kill the fetus.)

2. Killing (yup - the fetus is dead and the expert testimony all shows that keeler is causation. )

3. Human Being (that's in question - whether or not a fetus is a human being is not answered by the statute.)

4. Voluntary (yup - he kneed her in the stomach cause he was pissed.)

why does the court say Pen. 187 is relevant to what the court thought in 1850?

b/c in 1850 when the code was created, this was the settled commonlaw meaning of murder created hundreds of years before. notable that the definition had not ever changed.

bright line analysis: birth was the only way to know that a baby was actually present and alive. before modern science, "quickening" was the only real line to know whether or not the mother was actually potentially with child.

majority refuses to engage in a policy argument, and says legis can change if they want to.

dissent says that with modern technology, it makes sense to change the rule b/c no point to doubt viability. medical technology allows us to draw the line at "viability" (dissent doesn't totally tease out, but kind of does)

why viability?

deterrence: we don't want people to think that they can kill fetuses just because they're not human beings, in ways that would be murder if they were babies/ people.

deserts: what keeler did is horrible and he should be punished for what he did to the viable fetus.

keeler can't really claim that what he did wasn't premeditated or for the intent of killing the fetus. however, there are fairness and policy issues that conflict in this case: keeler cites cooke and chavez that he could not have had notice that killing a non-human being would be murder. on the other hand, there is fairness issue that keeler certainly didn't do this without any awareness or intent to harm or injure the fetus.

fairness.

notice. awareness of the law is a fiction, but a necessity because the alternative allows any defendant to argue that they didn't know of the law (ignorance of the law is no defense).

redefinition... NYPL has defined abortion as a felony (before 24 weeks), felony (after 24 weeks), felony murder (at/ after birth).

people v. eulo

"murder is intentionally causing the death of another person."

circulation and respiration, and brain function

Constitutional Prohibitions:

ex post facto clause. prohibits retroactive lawmaking by legis

due process clause. prohibits retroactive lawmaking by judges

why different results in keeler in eulo? maybe euth. is less controversial than abortion? but overall, shouldn't we leave populate legislation to legis branch, because otherwise have fairness and arbitration issues if judicial branch handles

in re banks

"any person who shall peep secretly into any room occupied by a female person shall be guilty of a misdemeanor and upon conviction shall be fined or imprisoned in the discretion of the court." GS 14-202

does banks have a democratic legitimacy argument? only indirectly (can't say that judges can't define, because there's a statute) because the statute is argued to be overbroad.

vague statutes: can't define your conduct to know how to appropriately be within statutory limits

overbroad statutes: limitless liability, you have no class of people to whom the statute applies, you can end up punishing innocent/ const protected conduct

overbroad statutes give great discretion to the police. problem? discriminatory issues.

to the extent that the courts "fix" statutes, they essentially let legis off the hook. in keeler, the court said "we're not fixing the statute" and the legis fixed immediately. but when courts reinterpret, they save the legis from making important policy choices. in keeler, the result is even more extensive culpability: if you kill a fetus, it's murder and if you kill a preggers, it's double homicide.

keeler v. sup ct

Keeler v. Superior Court

Supreme Court of California, 1970.

2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617.

Dressler, p. 81-89

Facts: The defendant accosted the pregnant victim and shoved his knee in her abdomen, damaging the fetus and causing it to be stillborn. The defendant was charged with three criminal counts, including murder. In response the defendant filed a writ of prohibition to stop the proceedings.

Issues: Is the fetus a human being? Can the defendant be charged with its murder?

Rules: The California Penal Code is to be interpreted in light of the common law it codified. Cases from common law rule that only a child who has been born can be murdered. The Penal Code further forbids the courts from convicting or punishing anyone for a crime not specified by statute. Statutes are to be interpreted in the manner most favorable to the defendant. Finally, no one can be convicted of an act they committed before that act was a crime, in other words, no one may be punished under ex post facto legislation.

Analysis: The majority reasons that the defendant may only be indicted for murder if the fetus was a “human being” under the definition used in the California murder statute. The words “human being” were chosen at the time the statute was written, which was in 1850. The court argues that in 1850, an infant could only be murdered if it had been born alive. Therefore, the words did not mean to include fetuses.

In response to the State’s argument that the common law requirement of live birth was outdated due to advances in medicine, the majority enumerated two obstacles to any change in the criminal law.

First, the majority, explains, the constitutional separation of powers and the principle of legality prevent the court from creating new crimes.

Second, even if the court expanded the statute to include the conduct of the defendant, the change would not apply retroactively because of the Constitutional guarantee of due process. The defendant would have to know in advance that such conduct is illegal. The court finds that the defendant could not have foreseen a change in the murder statute, and thus holding him to the change would violate his right of due process.

Acting Chief Justice Burke dissented, saying that the common law was a product of its time, and that the court’s interpretation of the murder statute—and in particular its working definition of “human being”—should take into account changes in medicine that would allow a fetus at the stage of Baby Girl Vogt to live outside the womb.

Burke says that convicting the defendant of murder would not create a new offense, and thus would not violate the principle of legality or overstep the bounds of the court. Burke says that the legislature intends the words “human being” to be construed broadly and in such a way as to promote justice.

He further argues against the majority’s contention that the defendant would lack “fair warning” and that the defendant’s right to due process would be violated. Burke claims that the defendant would know from common sense that he could be indicted for murder for killing a viable fetus.

Conclusion: The court rules that the Superior Court does not have the power to convict the defendant of murder. Burke dissents.

Notes and Questions

1. The statute broadens murder further than Justice Burke felt was required (with the explicit exception of abortion). He wanted the statute enlarged so that the term “human being” included “the fully viable fetus”. The statute as written seems to include all and any fetuses. Burke would have wanted the legislature to amend the statute to make the term “human being” more inclusive rather than simply append the words “or a fetus”.

2. So the protection of due process is the judicial analogue of the prohibition on ex post facto laws.

3. Accepting or rejecting the principle of legality versus the principle of crime by analogy runs in parallel to a society’s value judgment between the presumption of innocence and the presumption of guilt.

commonwealth v. mochan

Commonwealth v. Mochan

Superior Court of Pennsylvania, 1955.

177 Pa.Super. 454, 110 A.2d 788.

Dressler, p. 78-81

Facts: The defendant harassed a woman on the phone. His conduct was not forbidden by any particular statute, but a general provision in the Pennsylvania Penal Code “grandfathered” in common law crimes. The defendant was convicted. He appealed on the basis that his conduct did not constitute a common law crime.

Issue: Can the court uphold a conviction for a misdemeanor based only on common law?

Rule: Any act that “outrages decency and is injurious to public morals” is a misdemeanor under common law.

Analysis: The majority finds that the conduct would be considered outrageous by most people, and thus could have been punished under common law. In turn, the “grandfather” provision in the Pennsylvania Penal Code says that any act that is a crime under common law is still a crime. Therefore, states the majority, the conduct of the defendant is a misdemeanor.

Judge Woodside dissented, arguing that the majority’s decision inappropriately took away the power and responsibility of the legislature to make criminal laws. Woodside argues that what the defendant did was never a crime in Pennsylvania before, and it’s up to the legislature rather than the courts to make it a crime in an age when statutes dominate the criminal law. Woodside says the judiciary must use self-restraint and not overstep its bounds just like the other two branches of government.

Conclusion: The court upheld the judgments and sentences. Judge Woodside dissented.

Notes and Questions

1. The majority would argue that this ruling does not create a new crime, but rather enforces a prohibition that has long existed against a certain type of conduct. They would explain that this must be the intent of the legislature in including the “grandfather” section of the Penal Code. On the other hand, Woodside would claim that this is a clear violation of the principle of legality. Judge Woodside would say that phone harassment was not a crime as defined by statute at the time of the court’s ruling. Statutes are the primary way contemporary criminal law is defined. Therefore, Woodside would conclude that the court created a new crime.

2. I think the ruling and dissent create a good balance: they enforce a just result in the present case, but also serve to warn the legislature that they need to stay on top of developments in contemporary society and define new crimes to fit new technology. In a way, the court says: “You got away with it this time (we’ll punish the guy). But next time, we might let the guy off unless you write a statute.” I don’t think the court should make a habit of creating crimes, but if the legislature has been snoozing, I think it’s reasonable for the court to step in and set things right. In general, however, we believe that elected and accountable representatives ought to draft criminal laws rather than appointed and unaccountable judges. If the legislature had punted by passing an enormously broad statute saying that anything bad is criminally punishable, they would be violating the doctrine of void-for-vagueness. Even if justice had been served in the present case, the legislature’s irresponsibility would open the criminal justice system open to unbelievable abuse.

3. At the time of this case and in this court’s jurisdiction, sodomy is illegal while adultery is not illegal. Many people today do not agree that this should be so, but it would explain why solicitation of one act is illegal and not solicitation of the other act.

4. So common law is no longer controlling, but it does have authority and influence.