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Organize by Headings & Subheadings, Use Paragraphs: Statutory Construction Checklist

This document provides a checklist for statutory construction and criminal issue spotting. It includes 5 parts for statutory construction: 1) determining plain meaning, 2) applying canons of construction if ambiguity remains, 3) examining legislative intent, 4) applying rule of lenity if ambiguity persists, and 5) identifying the mens rea. It also includes a 2 part checklist for criminal issue spotting: 1) examining the actus reus, mens rea, concurrence, and causation for the charged offense, and 2) stating the likely conclusion on whether charges would be brought and potential defenses.

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Heidi Katherine Ruckriegle
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139 views4 pages

Organize by Headings & Subheadings, Use Paragraphs: Statutory Construction Checklist

This document provides a checklist for statutory construction and criminal issue spotting. It includes 5 parts for statutory construction: 1) determining plain meaning, 2) applying canons of construction if ambiguity remains, 3) examining legislative intent, 4) applying rule of lenity if ambiguity persists, and 5) identifying the mens rea. It also includes a 2 part checklist for criminal issue spotting: 1) examining the actus reus, mens rea, concurrence, and causation for the charged offense, and 2) stating the likely conclusion on whether charges would be brought and potential defenses.

Uploaded by

Heidi Katherine Ruckriegle
Copyright
© Attribution Non-Commercial (BY-NC)
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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Organize by headings & subheadings, use paragraphs

Statutory Construction Checklist

Part A
1. Determine the plain meaning of the statute
a. Apply the definition of the terms in the statute
b. Determine any specific legal definition other terms have
c. Use dictionary definition/ordinary usage of any other terms

2. If there is any remaining ambiguity follow cannons of statutory construction


to determine meaning
a. Noscitur a sociis(a word known by the company it keeps)- When a word
is ambiguous, its meaning may be determined by reference to the
rest of the statute.
b. Ejusdem generis(of the same kinds, class, or nature)- When a list of two
or more specific descriptors is followed by more general descriptors,
the otherwise wide meaning of the general descriptors must be
restricted to the same class, if any, of the specific words that precede
them.

3. If there is still ambiguity look to legislative intent (may be provided with a quote)
a. Legislature would never intend an absurd result

4. If there is STILL ambiguity, then the rule of lenity should be applied and the
statute is unconstitutional via due process because it fails to provide notice of
what the illegal conduct is

5. What is the mens rea

Part B
1. Examine if X should be charged with violation of the offense
a. Actus reas
b. Mens rea- What is the mens rea? what was the purpose of
legislature?
c. If no mens rea language- is it a strict liability offense, if not what
level of mens rea is required MPC or strict liability?
i. Negligence is the usual alternative when it’s a close call
(discuss b/w strict liability & negligence)
d. Homicide has bigger stigma- implying some mens rea required, cant
be strict liability

e. Concurrence
f. Causation
i. Proximate Cause- “But for”
ii. Were there any independent intervening causes?

2. Likely conclusion- yes he would be charged…or No


3. Any defenses that may be available to X
Issue Spotting checklist

1. Issues (separate by each potential D)- Include what Defense and Prosecution
would argue
2. Rule of Law for each issue
a. This will create sub issues- look at all the elements and see with they
have been satisfied
3. Application to the facts
a. Actus reas
b. Mens rea
c. Concurrence
d. Causation
i. Proximate Cause- “But for”
ii. Were there any independent intervening causes?

4. Likely conclusion- yes he would be charged…or No


a. Any Affirmative defenses that may be available to X
i. Concurrence?
ii. Mens rea?
iii. Constitutionality?
5. Conclusion
Checklist for an opinion question on how I think the law should be

1. Evaluate the law.


2. Statue on a particular issue given to me- whether I think the way it addresses
the crime is a good or bad approach.
3. Here is why is worse/better than other approaches. WHY? Argue about what
I think the law should be regarding that specific statute.
 Alluding to how other jurisdictions do it- whether that is good or bad
 Too narrow too broad?
 Does it achieve its intended goal
 Words to the effect of: “Yes, this is the best way for the criminal law to
deal with this issue because…..” If you say no- justify the response and
offer the explicit better way to do it (ex. The approach of MPC)

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