No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Conceptually related to the problem of definiteness in criminal statutes is the problem of notice. Ordinarily, ignorance of the law affords no excuse, or, in other instances, the nature of the conduct may sufficiently alert a person that there are laws that he must be observe.1 On occasion the Court has approved otherwise vague statutes because the statute forbade only “willful” violations, which the Court construed as requiring knowledge of the illegal nature of the proscribed conduct.2 When conduct is not inherently blameworthy, however, a criminal statute may not impose a legal duty without notice.3
The question of notice has also arisen in the context of “judge-made” law. Although the Ex Post Facto Clause forbids retroactive application of state and federal criminal laws, no such explicit restriction applies to the courts. Thus, when a state court abrogated the common law rule that a victim must die within a “year and a day” in order for homicide charges to be brought in Rogers v. Tennessee,4 the question arose whether such rule could be applied to acts occurring before the court’s decision. The dissent argued vigorously that, unlike the traditional common law practice of adapting legal principles to fit new fact situations, the court’s decision was an outright reversal of existing law. Under this reasoning, the new “law” could not be applied retrospectively. The majority held, however, that only those holdings which were “unexpected and indefensible by reference to the law which had been express prior to the conduct in issue” 5 could not be applied retroactively. The Court cited the relatively archaic nature of the “year and a day rule,” its abandonment by most jurisdictions, and its inapplicability to modern times as reasons that the defendant had fair warning of the possible abrogation of the common law rule.
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Footnotes
- 1
- E.g., United States v. Freed, 401 U.S. 601 (1971). Persons may be bound by a novel application of a statute, not supported by Supreme Court or other “fundamentally similar” case precedent, so long as the court can find that, under the circumstance, “unlawfulness . . . is apparent” to the defendant. United States v. Lanier, 520 U.S. 259, 271–72 (1997).
- 2
- E.g., Boyce Motor Lines v. United States, 342 U.S. 337 (1952); Colautti v. Franklin, 439 U.S. 379, 395 (1979). Cf. Screws v. United States, 325 U.S. 91, 101–03 (1945) (plurality opinion). The Court has upheld some statutes that did not explicitly include such a mens rea requirement. E.g., Morissette v. United States, 342 U.S. 246 (1952).
- 3
- See, e.g., Lambert v. California, 355 U.S. 225 (1957) (invalidating a municipal code that made it a crime for anyone who had ever been convicted of a felony to remain in the city for more than five days without registering.). In Lambert, the Court emphasized that the act of being in the city was not itself blameworthy, holding that the failure to register was quite “unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.” “Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.” Id. at 228, 229–30.
- 4
- 532 U.S. 451 (2001).
- 5
- Bouie v. City of Columbia, 378 U.S. 347, 354 (1964).