From the November 2008 Idaho Observer:

Criminal Law Part II: Three laws and a standard

Common Law is made up of judicially (judge or court)-created rules, laws and orders. The opinions of all criminal cases are considered Common Law. Common Law that has not been reversed for being unconstitutional may find its way into becoming a court rule, such as a rule of evidence or criminal procedure.

Statutory law is comprised of statutes. State laws are listed (codified) as statutes and are usually catalogued by a numbering system. For example, in Ohio, one of the state law statutes listing the crime of murder is found on Ohio Revised Code § 2903.02. This statute is a law that shows the elements of the offense or, put another way, the items the government MUST prove for the accused to be found guilty of violating the statute. Generally, statutes are laws passed by the legislatures of the several states, each of which consist of House of Representatives and a Senate. Once each has agreed on what the law should contain, they vote on it and, if it passes, the bill becomes law and a statute is born. Statutory law came into being in an attempt to bring substance and consistency to the common law.

Both common law and statutory law must be in harmony with constitutional law, which is supposed to be the "law of the land." The Constitution, though, is open to interpretation and application of law by the various courts. As court justices change so may the interpretation of the Constitution. Common law and statutory law are tested for constitutionality through court actions, which might be brought forward as an appeal or styled as one of the many forms of "writs" available to petitioners. For instance, an argument could be presented asserting the negative common law, or statute, is unconstitutional. If the reviewing court agrees, the law is changed to comport (agree) with constitutional standards, as interpreted by the court at that time.

These three types of law—common, constitutional and statutory—are used when challenging a conviction as together they create various standards of review. The specific standard of review tells the reviewing court what to look for and what common law(s) the standard is based upon. When challenging a court ruling it is important to know what the standards of review are for your claims of constitutional violation. If a constitutional claim is a chocolate chip cookie, the argument, then, would be that the evidence either does, or does not, contain the ingredients for the chocolate chip cookie.

A claim of "insufficient evidence" is a claim based on "legal insufficiency," which means the government failed to prove the accused guilty of the charged offense as it is defined by the "elements" in the statute that were alleged to have been violated.

The constitutional claim might look like: "The government failed to produce sufficient substantial, competent, reliable evidence on all elements of the offense charged."

For the reviewing court to determine whether sufficient evidence exists to support the conviction, it must look to the "recipe" for sufficient evidence. The recipe is the standard of review, which might read something like: "The due process clause requires the government to prove beyond a reasonable doubt every element of the crime for which a defendant is charged."

Before a charge can be submitted to a fact-finder (judge or jury) the prosecutor must have produced sufficient evidence from which a reasonable fact-finder can find all elements of the charge beyond a reasonable doubt. In re Winship, 90 S. Ct. 1068 (1970); Jackson v Virginia, 99 S. Ct. 2781 (1979); Fiore v White, 121 S.Ct. 712 (2001); Sullivan v Louisiana, 113 s. Ct. 2078 (1993).

Sufficiency of the Evidence speaks about Legal Innocence or Guilt. Stay tuned for a discussion about factual innocence.

Sempre avanti

D.M. Salerno

Toledo, Ohio