Interpretation of Criminal Law At Common Law and in Case Law

• Jurisdiction: Maryland

III. Interpretation of criminal law at common law and in case law

A. Judicial decision making

Case law is made by judges, one case at a time, in the context of an "actual case or controversy." Case law is primary authority. It is "the law."

Through Md. Decl. of Rights art. 5, Maryland adopted, as of July 4, 1776, all English case law and most English statutes. Md. Const., art V. That body of law is Maryland's "common law," except to the extent that it has been amended by the Maryland General Assembly. If, on a given point of law, the legislature has not "spoken," the Court of Appeals may create, abrogate, or amend Maryland's common law.

If the Maryland General Assembly has "spoken," and enacted law in a particular area, that is "the law," and, under the separation of powers doctrine, the Court of Appeals cannot "make" the law. In either event, under Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the courts, under the separation of powers, interpret and apply the law.

Subsequent to July 4, 1776, when Maryland inherited the common law of England, the Maryland General Assembly has "spoken" in most—but not in all—areas of the law. In those areas in which the legislature has spoken, under the separation of powers doctrine, the judiciary lacks the power to create the law and may only interpret and apply the law.

B. Stare decisis

Under stare decisis, "like cases should be decided in like manner." Judges look to previous cases to determine whether there is authority or "precedent" that controls the current case.

1. Mandatory case law

A case is mandatory and binding under certain circumstance. To be mandatory, the jurisdiction that decided the case must be a jurisdiction that binds the present jurisdiction. All jurisdictions are bound by the Supreme Court of the United States.

If a case is in a federal trial court, e.g., U.S. District Court for the District of Maryland, that District Court is bound by the federal Circuit Court in which that District Court is located. For example, the U.S. Court of Appeals for the Fourth Circuit binds the U.S. District Court for the District of Maryland. The Fourth Circuit only binds the District Courts in the five states within the Fourth Circuit, e.g., Maryland, Virginia, West Virginia, North Carolina, and South Carolina, and binds no other District Courts. The U.S. District Court for the District of Maryland is bound by the Fourth Circuit but is not bound by any other Circuit Court.

There are 94 federal District Courts in 12 federal circuits, i.e., First Circuit through Eleventh Circuit, plus the District...