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.

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.

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.

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.

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.

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.

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.

I thought SCOTUS rejected the “federal-commonlaw” outright. Erie, anyone? In that case, nobody should be allowed to plead self-defense in federal courts.

troll_dc2: 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.

(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.

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!

RowerinVA:
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.

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).

A judge “making” law is generally understood to be acting contrary to legislature’s directions, including acting where legislatures intentionally fail to act.

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”?

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.

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.

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.

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.

Mahan Atma: You mean judges make law???I’m horrified!!

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.

I’m horrified!!