A commenter on the thread about photos of rape of a minor being child pornography asks,
But if the laws were meant to have exceptions for possession (to retain as evidence and transmit to the proper legal authorities) then why was it not simply written into the text of the law. Similarly, the prosecutor with his copies, duplicated, retransmitted within his office, shared with his staff have no special immunity because the law most certainly does not grant waiver of any kind to anyone.
Many criminal laws, and criminal law defenses (such as self-defense), were originally created by judges as part of the common-law-making process. American jurisdictions have largely (and sometimes entirely) codified their crimes, chiefly by just adopting the common-law rules. But some jurisdictions — such as the federal government — haven’t codified the defenses. The self-defense defense, for instance, generally isn’t written into the text of federal laws; it remains as a common-law defense that existed long before the federal statutes.
Many California criminal defenses are codified, and at times the California Supreme Court has said that there are generally no common-law defenses recognized in California. But there is a long line of California appellate cases recognizing the defense, and to my knowledge California commentators assuming those cases are good law — certainly the California Supreme Court hasn’t moved to overturn them.
Perhaps it would be best if Congress and all state legislatures codified all their common-law defenses, and barred judges from recognizing new defenses on their own. But that just hasn’t been the uniform pattern in the U.S. And as a result, one can’t just say that a defense that isn’t statutorily mentioned can’t be raised, at least unless the relevant legislature has expressly adopted such a rule.
troll_dc2 says:
Suppose common-law defenses were codified. The code could state that only the specified defenses could be recognized, but what is to stop a defendant from asserting during his testimony that he did what he did because of a reason not stated in the code? Could a judge tell him to stop? Even if the judge did this and even if the judge told the jury to ignore what the defendant said, could the jury nevertheless accept what the defendant claimed? Of course.
November 3, 2009, 5:51 pmMahan Atma says:
You mean judges make law???
I’m horrified!!
November 3, 2009, 6:00 pmRowerinVA says:
A judge “making” law is generally understood to be acting contrary to legislature’s directions, including acting where legislatures intentionally fail to act. What we’re talking about here is standard “interpretation,” which is filling in apparent omissions or minor points not explicitly covered in statutory law, as required merely to effectuate that statutory law. Since it would be impossible to prosecute child porn if the judge and prosecutor were thrown in jail merely for granting the accused his Constitutional right to confront the evidence against him, there is obviously an implied and limited prosecution exception.
It’s impossible to codify all such interpretations. That’s why we have judges and prosecutorial discretion. Prosecutorial discretion is (or should be) far broader than the scope of judicial interpretation, because prosecutors are answerable to the public, whereas judges (in most states and in the federal system) are not.
November 3, 2009, 6:23 pmMark Field says:
Generally understood by whom? Nobody I know of applies the narrow definition you’re using. And the distinction you’re trying to make seems to me one without a difference.
November 3, 2009, 6:33 pmVisitor Again says:
This is where the originalists who insist judges should never make law come unstuck. Judges always have made law, and the Framers of the Constitution expected them to act as they always had, to continue to make law, to fill in the gaps, to adapt to new circumstances and so on.
November 3, 2009, 7:12 pmMahan Atma says:
There was a time when even the laws prohibiting murder were made by judges. Is that a case of a legislature “intentionally failing to act”?
I think you need to review your history. Since the founding of this country, judges have traditionally played a MUCH more active role in law-making than what you describe.
November 3, 2009, 7:17 pmOff topic says:
In the health care bill there is a Section called “sunshine one price gouging by health insurance issuers”. The paragraph says that every time someone’s insurance price is raised, an accompanying justification must be sent to the health department. Does this mean that the health department can reject justifications arbitrarily? Anyone have any insight into what this section of the bill does?
November 3, 2009, 7:53 pmMark N. says:
I can see that in this case, but there are much broader judge-created common-law defenses, like self-defense as an exception to murder (now codified in many murder statutes, but not originally).
November 3, 2009, 7:59 pmSplunge says:
Perhaps it would be best if Congress and all state legislatures codified all their common-law defenses
Quite right. And while they’re at it they should codify common sense judgment as well, thus not only relieving the public of the burden of paying the salaries of judges, but also solving the strong AI problem and making possible Jetsons robots that can walk my dog and change my toddler’s diaper. Yay!
November 3, 2009, 7:59 pmSuperSkeptic says:
Many criminal laws, and criminal law defenses (such as self-defense), were originally created by judges as part of the common-law-making process. American jurisdictions have largely (and sometimes entirely) codified their crimes, chiefly by just adopting the common-law rules. But some jurisdictions — such as the federal government — haven’t codified the defenses. The self-defense defense, for instance, generally isn’t written into the text of federal laws; it remains as a common-law defense that existed long before the federal statutes.
I thought SCOTUS rejected the “federal-commonlaw” outright. Erie, anyone? In that case, nobody should be allowed to plead self-defense in federal courts.
(emphasis added)
That is jury nullification of the law, and it is much frowned upon by federal judges (actually, state judges too – all judges). I would say, of course not.
November 3, 2009, 8:06 pmEugene Volokh says:
SuperSkeptic: No, Erie did not reject federal common law outright; it rejected federal common law in diversity cases. Federal common law crimes were rejected in the early 1800s (Hudson & Goodwin, if I recall correctly), but federal common law defenses have existed throughout the history of the federal criminal law. And of course federal common law endures in admiralty law, long endured as to the federal law of evidence and civil procedure (until the Rules were set up, and even then privileges were specifically left as a common-law field by Congress), and long existed as to the fair use defense in copyright law (both without Congressional authorization before the 1976 Act, and with Congressional authorization, though also with Congressional guidance, since the 1976 Act).
November 3, 2009, 8:50 pmMahan Atma says:
SuperSkeptic is thinking of the statement in Erie that “there is no federal common law”. His/her civ pro professor was supposed to explain what the Erie Court meant by “federal common law” in that context, which is very different from the literal modern meaning of that phrase.
Federal common law is live and well. It is even promulgated by conservative Supreme Court Justices, such as Antonin Scalia. See Boyle v. United Technologies.
November 3, 2009, 8:59 pmSuperSkeptic says:
Thank you, sirs.
November 3, 2009, 10:15 pmDS says:
As for the prosecutor’s liability for possession, I think Nardone v. United States, 302 U.S. 379 (1937), is relevant. There, the Court said, “The canon” [is] “that the general words of a statute do not include the government or affect its rights unless the construction be clear and indisputable upon the text of the act . . . . The cases in which it has been applied fall into two classes.” Nardone, 302 U.S. at 383. “The second class-that where public officers are impliedly excluded from language embracing all persons-is where a reading which would include such officers would work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm.” Id. (citing Balthasar v. Pacific Elec. Ry. Co., 202 P. 37 (Cal. 1921) and State v. Gorham, 188 P. 457 (Wash. 1920)).
November 3, 2009, 11:25 pmFub says:
Prof. Volokh wrote:
In light of your next sentence, I would be interested to know in what cases such statements appeared. I’m not doubting, I’m interested in knowing the case context.
One possibility that occurs to me is that common law defenses are not exactly duplicated in CA case law. That might justify the statement above. The upshot would be that CA case law defenses more or less parallel common law defenses, but have some additional or different elements.
I would agree that self-defense and defense of others are not common law in CA. They are enacted as CA Penal Code 692-694.
But CA’s (criminal) necessity defense is certainly court made, and fairly recently, in People v. Pena (1983) 149 Cal.App.3d Supp. 14. The court relied on, and elaborated, the more limited duress defense of Penal Code 26 (see class 6 in the statute).
Perhaps the statements about common law defenses not existing in CA were intended to mean English common law, as distinct from law homebrewed in CA courts.
November 4, 2009, 12:31 amCornellian says:
I thought SCOTUS rejected the “federal-commonlaw” outright. Erie, anyone?
Erie rejected the idea that if a plaintiff from State A sues a defendant from State B for breach of contract (for example) that there was a federal common law of breach of contract that governed that dispute. Instead, the federal court was required to apply the state law of breach of contract to that claim. Which state’s law applies is a different (and remarkably difficult) question. As other commenters have pointed out, common law has always existed within federal jurisdiction in other contexts, such as Admiralty law and evidence, and of course common law concepts have informed the interpretation of federal statutes for as long as there have been federal statutes. Legislatures are generally assumed to legislate with knowledge of the common law so terms in statutes are often given their common law meaning, absent something in the statute or legislative history suggesting Congress intended some other meaning.
November 4, 2009, 1:59 amRodger Lodger says:
Where’s the defense to possession of drugs for drug enforcement agents?
November 4, 2009, 11:15 amtroll_dc2 says:
SuperSkeptic, jury nullification of the law may be something that courts abhore, but it most certainly happens, and in the criminal context the rule against double jeopardy prevents anyone from doing anything about it. If a jury wants to accept a defense or a justification, it can. So far as I know, you cannot hold a jury in contempt for ignoring the judge’s instructions.
November 4, 2009, 11:43 amjeffry house says:
In Canada, it is generally thought that s. 7 of the Charter of Rights and Freedoms guarantees that a court may recognize new common law defences where justified. S. 7 recognises the right to due process in accordance with “fundamental justice”.
While it may well be that the presently-existing common law defences exhaust the category of possible defences, there is no reason to close that category definitively.
It is unlikely that a legislature would ever turn its mind to rarely-occurring circumstances which might tend to justify an individual accused; nonetheless justice would require an acquittal.
November 4, 2009, 1:02 pm