The year-and-a-day rule: a common law vestige that has outlived its purpose

Jones Law Review, Annual, 2004 by Neil M.B. Rowe

The Widespread Rejection of the Rule

Just over one month before the Alabama Supreme Court's decision in Ex parte Key was released, the Supreme Court of Wisconsin made that state the thirtieth jurisdiction to reject the year-and-a-day rule. (36) In State v. Picotte, the Wisconsin court analyzed the legal basis for the rule in Wisconsin law and rejected the prosecution's argument that a revision of the state's criminal code effectively abrogated the rule. (37) The court, nonetheless, exercised its authority to develop the common law and abolished the rule prospectively. (38)

The other states that have either abrogated the rule or otherwise declined to follow it have taken a variety of approaches in reaching that conclusion. Seven states (Arizona, Arkansas, California, Maryland, Missouri, Montana and Washington) have legislatively abrogated the rule. (39) Four states (Colorado, Delaware, North Dakota, and Utah) have repealed the statute which had codified the rule. (40) Two state supreme courts (Connecticut and Iowa) have recently held that the rule never was the law in those states. (41) In five states (Georgia, Illinois, New York, Oregon, and Texas) the courts have held that adoption of a new criminal code effected the rule's abrogation. (42) And the highest courts of twelve jurisdictions (District of Columbia, Florida, Massachusetts, Michigan, New Jersey, New Mexico, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, and Wisconsin) have judicially abolished the rule. (43) In addition, in at least one state, the state crime commission has strongly urged the state legislature to abolish the rule. (44) Thus, of the thirty-one jurisdictions that have addressed the continued viability of the rule in recent years, Alabama remains the only jurisdiction that has addressed it and elected to continue it in force. (45)

The Circumstances Leading to the Rule's Demise

Historically, three reasons have been advanced for the year-and-a-day rule in its present form. Through developments in medical care, forensic techniques, and other changes in criminal law and criminal procedure, each of those reasons has now been rendered meaningless. Moreover, there are at least two meritorious reasons that have been advanced for the rejection of the year-and-a-day rule.

The first and most frequently relied upon justification for the rule is that medical science at the time of the rule's development was not capable of establishing legal causation beyond a reasonable doubt when a great deal of time had elapsed between the injury and the victim's death. (46) The courts that have addressed the issue have roundly rejected this reason. For example, the Ohio Court of Common Pleas stated:

   since great advances have been made in scientific
   crime detection and scientific medicine, the doubt
   that a mortal blow is the cause of death, when death
   ensues a year and a day after the blow, has been
   largely removed. Consequently, a period of a year
   and a day after which death is conclusively presumed
   to result from natural causes is no longer realistic. (47)