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Law School Case Brief

Marks v. United States - 430 U.S. 188, 97 S. Ct. 990 (1977)


The Ex Post Facto Clause is a limitation upon the powers of the legislature, and does not of its own force apply to the judicial branch of government. But the principle on which it is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to constitutional liberty. As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment. An unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law forbidden by Const. Art. I, § 10. If a state legislature is barred by the Ex Post Facto Clause from passing such a law, then a state supreme court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. A conviction under a state obscenity law that rests on an unforeseeable judicial construction of the statute mandates reversal because affected citizens lack fair notice that the statute would be thus applied.


Petitioner Marks and others were convicted on obscenity charges for a period through February 1973. Trial did not begin until the following October. In the interim, on June 21, 1973, the Supreme Court of the United States decided Miller v. California and its companion cases. Miller announced new standards for isolating hard core pornography from expression protected by the First Amendment. At trial, petitioners argued that they were entitled to jury instructions not under Miller, but under the more favorable formulation of the Memoirs case, which they felt stated the law in effect prior to Miller, by which they charted their conduct. The Memoirs test constitutionally protected expressive material unless it was utterly without redeeming social value. Under Miller the comparable test was whether the work, taken as a whole, lacked serious literary, artistic, political, or scientific value. The district court rejected petitioners' arguments and instructed the jury under the Miller standards. Petitioners were convicted on obscenity charges, and a divided United States Court of Appeals for the Sixth Circuit affirmed. Petitioners were granted a writ of certiorari.


Were the standards announced in Miller v. California to be applied retroactively to the potential detriment of a defendant in a criminal case?




The Supreme Court of the United States reversed the appellate court's judgment and remanded the case for a new criminal trial with jury instructions under the pre-Miller obscenity standards. The Court ruled that to apply Miller retroactively, and thereby punish conduct innocent under Memoirs, violated the Fifth Amendment Due Process Clause because Miller marked a significant departure from Memoirs and expanded criminal liability.

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