Legality

Case: Rogers v. Tennessee, 532 U.S. 451 (2001) [p. 155]

Summary: Rogers stabbed Bowdery in the chest, who died 15 months later from complications of this injury.
Rogers was convicted o1.05(f second degree murder, and appealed, arguing that there was a common law rule
where the victim would have to die within a year and a day of the incident for Rogers to have been guilty (not in
the statute though, only common law rule). The reason behind the common law rule was no longer applicable
because of medical science's ability to tell what caused the death. So the court had abolished this rule. Rogers
argued that this violated the Ex Post Facto clause of state & fed constitutions. The court disagreed, saying that
the rule is outdated, and Rogers was put on reasonable notice that the rule no longer applied, especially since so
many jurisdictions had abolished it. Additionally, this was not a legislative change, but a judicial one.

Dissent: applying ex post facto law makes the decision invalid.

Notes:
• Principle of prospectivity:
o Ensure fair notice to Δs so they can conform their conduct to the law
o Prevent ad hominem or discriminatory criminalization (punishing conduct on basis of who
committed it, rather than because of its wrongfulness or harmfulness)

Case: Keeler v. Superior Court, 2 Cal. 3d 619 (1970) (p. 160) - man beats up his wife who was 8 mos pregnant
with another's man's baby; he had intended to kill the baby. Question was whether the murder statute applied -
was the unborn baby a human life?
• The CL idea was that a human life started at birth. The Court held that it cannot change that to also
include viable fetuses (where they can live on their own if they were to be prematurely born). Court
noted that fair warning was a very important constitutionally protected right - due process. Δ was not
given adequate notice in this case, and so couldn’t be held guilty of murder.
• Keeler decided on 2 grounds:
o Legislativity of criminal lawmaking required by statute
o Prospectivity of criminal lawmaking required by the 14th amendment.
• Class Notes
o Δ charged with murder for assaulting his pregnant wife, and unborn, viable fetus dies.
o Murder statute only applies to "human beings" - so what does it mean to be a human being?
o Court holds that they don’t think legislature intended to include unborn fetuses.
o On rule of legality- court says also that we cant hold that legislature did mean that b/c of 2 more
problems:
 Only legislature can make the law, not the courts (courts only interpret)
• No common law or judge-made crimes
• Separation of powers - legislature makes laws
 Prospectivity - no fair notice
• Statute only said human beings, and it never was considered to include fetuses, so
we cant do it now b/c Keeler did not have notice that it was a crime.
• No punishment unless there's a statute that defines the crime
o Why? b/c there's no fair warning to people that there's a crime
• We want to give people a chance to conform to the law
• We don’t want arbitrary lawmaking.
 o A judge may make a law making something you did previously now
illegal, and prosecute you for that now, even when you did it, it wasn’t
illegal.

• There's nothing in the Constitution that says you can’t have common law to punish criminal offenses
o There's nothing that empowers the fed court to make common law, but state courts can
• Court not expanding the scope of lawmaking, but only taking away what common law rule made. It's a
question for court if they want to respect precedent or not.
• Commonwealth v. Morris, (2004) - "human being: includes a viable fetus