Rogers v. Tennessee - Opinion Announcement

Argument of Speaker

Mr. Speaker: Justice Kennedy has an announcement.

Argument of Justice Kennedy

Mr. Kennedy: This is the opinion for the Court in Rogers versus Tennessee, No. 99-6218.

The opinion for the Court has been authored by the Justice O'Connor and I have been asked to announce it.

Petitioner Wilbert Rogers was convicted in the Tennessee State Court of second degree murder.

Petitioner had stabbed a man and the victim died fifteen month later.

On appeal of the Supreme Court of Tennessee the petitioner argued that the common law “year and a day rule” precluded his convection.

At common law that the “year and a day rule” provided that no defendant could be convicted of a murder, unless his victim had died by the defendants act within a year and a day.

The Supreme Court of Tennessee affirmed the conviction, the court have abolished the “year and a day rule” as a matter of common law of Tennessee.

After concluding that their reasons for recognizing the rule of common law no longer existed, the court further concluded that application have its decision to the petitioner would not violate due process concerned with retroactivity under this Court’s decision in Bouie versus City of Columbia.

We granted certiorari to the Supreme Court of the State of Tennessee, and in an opinion filed with the Clerk of the Court today, we affirm the judgment of that court.

Our case in Bouie involves the retroactive application of judicial construction of a criminal statute.

We held in Bouie that due processes prohibits a retroactive application, only where that judicial construction is unexpected and indefensible, by reference to the law which had been expressed prior to the conduct in issue.

Now, Bouie did not incorporate the specific prohibitions of the constitution’s Ex Post Facto Clause into due processes limitations on retroactive judicial decision making rather Bouie’s rationale rested on core due process concepts of notice, foreseeability, and, in particular, the right to fair warning.

Now that criminal penalties may attach to what previously had been innocent conduct.

Petitioner’s case involves a retroactive judicial alteration of a common law rule, as apposed to retroactive judicial interpretation of a statute.

The standard articulated in Bouie, we believe, is appropriate to this common law context as well indeed a more stringent standard of the sort suggested by petitioner would unduly impair the incremental and reasoned development of precedent.

Now, that is the foundation of the common law system.

Accordingly, we hold that a retroactive judicial alteration of a common low doctrine of criminal law does not violate the principle of fair warning, unless it is unexpected and indefensible by reference to the law which has been expressed prior to the conduct in issue.

The Tennessee Courts’ abolishing of the “year and a day rule” was not unexpected and indefensible; advances in medical and related sciences have rendered the rule obsolete.

The vast majority of jurisdictions recently to have considered the rule have abolished it.

Most important at the time of petitioner’s act, the rule had only the most tenuous foothold as part of Tennessee’s criminal law.

The rule has been mentioned only three times in dicta and all the reports of Tennessee cases.

It has not served as a ground of decision in any murder prosecution in the State.

Now, there is in short nothing to indicate that the Tennessee Court’s abolishing of the rule in petitioner’s case represented the sort of arbitrary and unfair judicial action against which the Due Process Clause aims to protect.

justice Stevens has filed a dissenting opinion; Justice Scalia has filed a dissenting opinion in which Justices Stevens and Thomas have joined and in which Justice Breyer has joined as to part two; Justice Breyer has filed a dissenting opinion.