‘Law’ is defined as “a rule of conduct of procedure established by custom, agreement or authority”.


‘Law’ is defined as “a rule of conduct of procedure established by custom, agreement or authority”. This paper makes an attempt to bring out the main themes of the course of Law, namely the changing definition of homicide, the treatment of the accused before the bar and changes in the justice system as to how the system tracked and identified those accused of murder. It also tries to shed light on the neutrality or otherwise of the justice system in the light of making of the laws by the society.

As first part of the paper goes, the perceived miscarriage of justice resulted by the wide involvement of the media in the respective trials is brought out by a comparative review of the sensational murder trials conducted in the American Legal History over the past century, of Lizzie Borden ax murders happened in 1892 and kidnapping and murder of the Lindbergh boy by Bruno Hauptmann happened in the year 1932.


A comparative study and review of how the two trials of Lizzie Borden and Bruno Hauptman was conducted and judgment delivered would explain the basic concept of the belief that an innocent man being punished is generally a more serious miscarriage of justice than a guilty man being set free. The analysis of the trial of Lizzie Andrew Borden goes like this:


Lizzie Andrew Borden, an American woman born in the year 1860 turned out to be a murder suspect in the killings of her parsimonious father and step mother, who were brutally mutilated with a sharp weapon and slain on the 4th of August 1892 at their Fall River home. “Lizzie was arrested and tried for both the crimes with the maid being suspected as an accomplice”- (Article: Britannica Concise Encyclopedia)

. However she was acquitted because the prosecution was not able to prove the crime and the evidences produced were only circumstantial. A descriptive study of the conduct of the investigation and the subsequent trial brought out the following issues. Although quite subjective, these issues are of great importance in the matter of analyzing the justice system for its effectiveness in the conduct of trials.

In the circumstances of the criminal forensics and the sociocultural limitations on the police investigations present at the time of the incident, the Lizzie Borden case definitely presupposes the inactive police work to thoroughly search the wardrobe of Lizzie Borden for the evidence of her cloths with blood stains. Because of this inactiveness it was alleged that Lizzie was able to burn afterwards, the dresses she wore on the day of murder.  Here the prosecution lost effective evidence which would have otherwise proved Lizzie’s guilt.

Without precedence the judge admitted the exclusion of the contradictory and incriminating statements made by Lizzie at the time of an inquest, simply on the basis of the fact there was no counsel present at the time of the inquiry. The judge failed to see issues beyond procedures may be because of his biased ness in favor of Lizzie. The other evidences like the enmity among the three women (Lizzie, her sister Emma and the step mother) in the Borden household and the fact that Lizzie was attempting to purchase poison the earlier day, corroborated by a witness were also not admitted which lead to the acquittal of Lizzie from the crime.

The period of time of the happening of the crime might also have played a role in the trial and the verdict in Lizzie’s case, as the murders happened in the Victorian Era when ‘True man hood’ and ‘True woman hood’ existed. During this period of the history, there existed a generally conceived perception that a woman could not commit such gruesome murders using weapons like an ax. Such social conditions existed (which redirected the salvation of the murder case), obviously went in favor of Lizzie, proving the ironical fact that the otherwise oppressive patriarchal society of that time worked to the acquittal of Lizzie from a first degree murder conviction.

“The dress undoubtedly had bloodstains on it. Lizzy also received sympathetic coverage by the press, while the prosecution was routinely criticized. The judges handling the case also appeared to be quite biased in Lizzy’s favor” – (Walter L.Hixson 2001)

Last but not the least of the issues which accentuated the chances for the miscarriage of justice happened when the judge presented the case to the trial jury. The presentation of the case was made in such a way in favor of and as argued by the defense by the judge that the jury didn’t spend much time in arriving at a unanimous ‘NOT GUILTY’ verdict.


“The crime was not simple murder, but the murder and kidnapping of a one-year old child–every parent’s worst nightmare. Moreover, the trial featured many of the elements one looks for in a good trial, including voices in cemeteries, surprise witnesses, ransom notes, go-betweens, and mysterious suicides. The defendant, a German immigrant at a time of the Nazis rise to power, makes the trial story even more compelling.”

– (Douglas Linder 2002)

Bruno Richard Hauptmann, a German national and a carpenter by profession, born in 1899 was convicted and sentenced to death in the case of kidnapping for ransom and murdering the 20 months old son of Charles and Anne Morrow Lindbergh in the year 1932. As reported by the media ‘The Crime of the Century’ resulted in the execution of Bruno Haputmann for first degree murder based on strong circumstantial evidences, although Hauptmann claimed innocent till he was taken to the ‘chair’. The basic issues relevant to the rendering of justice by allowing a due process of the trial are discussed below:

This case of Bruno Hauptmann also witnessed a haphazard work of the police in that they didn’t properly secure the crime scene resulting in the loss of valuable evidence. Because of an inadequate search of the Lindbergh estate, it had taken two months for the police to recover the body of the child which if found before the payment of the ransom would have changed the course of the trial against Hauptmann.

The highly condemnable act of the police went to the extent of interrogating Hauptmann for longer hours without food or sleep and also adopted third degree methods of interrogation of beating him to get the statements which eventually went against him. Even the governmental agencies like FBI, New Jersey Police and the prosecutors acted against Hauptmann by withholding exculpatory evidences from the defense.

Circumstantial evidences like the ransom money paid as gold certificates used by Hauptmann, cash found in the garage of Hauptmann and the hand-made ladder which was supposed to be made by Hauptmann using his carpentry tools to kidnap the child, all went against the accused Hauptmann.

Basically because of the criminal background of Hauptmann, from the beginning of the reports on this case, the massive media coverage was prejudiced against him by condemning him for the kidnapping and murder. The media played a very important role in making him appear to be guilty of the crime and eventually saw to it that he received the sentence he deserved for his crime as portrayed by them during the progress of the trial.

Being an immigrant with a criminal background, Hauptmann couldn’t receive any effective legal assistance of counsel. Moreover, as in the case of Lizzie’s double murder, here also the case was presented to the jury in a biased manner that enabled the jury to return the verdict of GUILTY of first degree murder with a punishment of death sentence.2.3 INFERENCES

The following are the inferences on the outcomes of both the murder trial cases out of the discussions enlisted above:

Lizzie’s case is one of the miscarriage of justice, in which a guilty person was set free, whereas the case of Bruno hauptmann is one in which there was no apparent miscarriage of justice but it represents a case of  a criminal defendant denied basic rights of a due process and a fair trial.

In both the cases, circumstantial evidences played a crucial role; for Lizzie those evidences brought her freedom because of the prosecution’s inability to prove the crime based on the circumstantial evidences. In the case of Hauptmann the circumstantial evidences went against him and ultimately made him electrocuted.

In both the cases it was the presentation of the cases to the Jury by the judges which changed the verdicts of the cases. In Lizzie’s case such a presentation backed by the prevalent socioeconomic environmental sentiments protected the guilty. In the case of Hauptmann the presentation of the case coupled with the condemnation of the accused by the highly charged media prevented Hauptmann receiving a fair trail in a due process of justice. (Of course it should be noted that a fair trail would not have eliminated the chance of finding Hauptmann guilty, but at least would have made him escape from the capital punishment.)


In this part of the study we will deal with the crime of homicide and how the term has developed in to a major branch of Criminal Law under different time periods in tune with to the then prevalent social and political customs and practices. This study paper also deals with the problems encountered by the Canadian courts in applying the changed scope and application of the definitions of Homicide during the trial of various cases and render justice thereon.


“Homicide is a neutral term. It describes an act with no moral judgment. Murder is the term that is non-neutral. It describes an act with moral judgment. The law of homicide has the most complex degree (grading) system of any area in Criminal Law.” (Syllabus for JUS 293, 2005)

Homicide may be classified into:

Justifiable Homicide – involving death of someone under circumstances of necessity or duty. Examples: self defense, capital punishment and police shootingsExcusable Homicide – representing misadventures, accidents, or acts of insanity involving acts of civil fault, error or omission.1st Degree Criminal Homicide or Murder – premeditated, deliberate or malicious acts causing death of someone in ‘cold blood’ or ‘lying in wait’.2nd Degree Criminal Homicide or Murder – involving acts in the ‘heat of passion’ causing the death of someone. The older terms ‘year and a day’ and the idea of ‘malice aforethought’ are associated with this category.Voluntary Manslaughter – involving acts of ‘sudden passion’ without premeditated deliberation causing the death of someone. There should be ‘adequate provocation’ backed by the circumstance ofThe person loses the ability to reflectThere is no sufficient time to cool off orThe provocation must have caused action.Involuntary Manslaughter – also known as misdemeanor manslaughter which is a crime of criminal negligence and this is the lease serious offence in the law of homicide.Justifiable and Excusable homicides are called ‘perfect defenses’ and the remaining are ‘imperfect defenses’.

Evolution of Homicidal Law:

In the following few paragraphs, we will have a brief look in to the various processes the Homicidal law had taken to reach the present state through different periods of time.

“The earliest recorded laws (those of Khammurabi) do not contain any sweeping general provision as to the punishment of homicide. The death penalty is freely imposed but not for homicide. “- (1911 Encyclopedia)

In the late Greek periods, the verse as mentioned in the ‘Decalogue’ or ‘Ten Commandments’ – “Thou shall not kill” was the order of the day and was the ultimate punishment for homicide.In the primitive law, ‘a life for life’ was maintained as the capital punishment and with the evolution of time man began to understand accidental killings and committing planned murders for a motive. Such an understanding resulted in evolving a course of private justice.

Next came the system of determination of payment of compensation or ‘blood money’ by the murderer to the kin of the deceased, on some sort of an assessment of the amount payable or the system of giving a punishment of living in a city of refuge for an unintentional killing of a fellow human being.  This was the position of Homicide as a crime during the Jewish period.

Between 5th to the middle of the 15th century the personal hostilities and clans or families were contained to a certain extent by the system of compensation being paid as blood money. However the personal vendetta continued to exist in Holland, part of Germany and Switzerland until 16th century.  In the mid 16th century, the word murder assumed the meaning of secret homicide and a murder fine was being levied.

Legislation of Henry VIII in 1531 brought further differentiation between different degrees of criminal homicide.From the mid of the 12th   till earlier part of the 19th century, homicide by mistake or in self defense was punished with forfeiture of goods or excused by a pardon. Wherever there was forfeiture of assets and pardons, the accused were acquitted by the judges in the process of the trials. The excusable homicide was expressly declared only in the year 1828.

Section 7 of the Offences against the Person Act 1861, provided “No punishment or forfeiture shall be incurred by any person who shall kill another by misfortune or in his own defense or in any other manner without felony”.

No absolute legislative definition was ever possible for homicide except that the essential element of ‘wilful murder with malice prepensed’ was the criteria to determine the punishability of the offence. Moreover such concept of “malice aforethought’ was subjected to many judicial interpretations and discussions to include “constructive’ murder.

This was the first time a somewhat clear definition of the term homicide emerged and the English Law still orients along with this definition and presume all homicide to be ‘malicious and therefore murder’ unless such act is either deemed as an accident or an act of self preservation or justified by the permission of law.

It also distinguished ‘manslaughter’ being an unlawful act occasioned by some sudden and sufficiently violent provocation.


Even though homicides account for only a relatively small proportion of 0.02% of all known crimes to Police in Canada each year, homicide is considered to be the most serious of all criminal acts. Unlike other crimes, the definition of homicide tends to be fairly consistent across the nations. Analysis of homicide thus becomes important to examine not only because of its severity but also because it is believed to be a fairly reliable barometer of violence in a society. The following are some of the important factors which the courts in Canada face as challenges for administering justice in the area of homicide.

he Current definitions of these offences are largely the product of judicial law making in individual cases over hundreds of years. They are not the products of legislation enacted after wide consultation and research into alternative possibilities. Moreover, from time to time the definitions have been altered by the courts, each new case sometimes generating further case law to resolve ambiguities left behind by the last one.

·        The inclusion within murder of cases in which the defendant killed but intended only harm that the jury regards as serious, is highly controversial. On this basis, even someone who positively believed both that no one would be killed by their conduct and that the harm they were inflicting was not serious, can find themselves bracketed with the “contract” or serial killer as a “murderer”

·        If murder can be too broad, so can manslaughter. It probably covers as large a range of forms of culpability as any crime in English law.

·        At the most serious end of the involuntary manslaughter spectrum, the law may be too generous to defendants who kill by reckless conduct. The worst kinds of reckless killer may deserve to be convicted of murder.

·        At the less serious end of the involuntary manslaughter spectrum, the law may be too harsh on defendants who kill as a result of an unlawful and dangerous act The risk of harshness arises when defendants do not realise that the act may cause harm:

EXAMPLE:  D is seeking to steal a large book from the fourth floor of a library whose windows face on to a busy street. Seeing the librarian coming towards him, D quickly drops the book out of the window. It lands on V’s head as she walks underneath the window, killing her – (The Law Commission Consultation Paper No 177, 2005)

“The main argument is that there is a pervasive lack of public confidence in the criminal justice system because of widespread perceptions that there are too many acquittals, that sentencing is too soft, and that the system is not protecting citizens from crime.”- (Don Stuart, 1999)

·        Another factor which accounts for the challenges faced by the courts in homicide cases is the lack of competence, bad judgment, or deliberate disrespect for charter values on the part of the police which often lead to acquittals and thus undermine the confidence of the public on the courts.

·        ‘Wrongful convictions’ instigated by unintended errors by police, prosecutors, defense lawyers and judges, poor witness reporting, unreliable prosecution witnesses and fabricated evidences, poor performance by the legal-aid lawyers who are enlisted to defend poor and uneducated defendants and well educated, prosperous but conservative judges contribute as a deterrent to administer justice not only in homicide cases but in other crimes also, during the current period.

·        Disproportionate and ineffective punishments often coupled with early release on parole and statutory release under the pretence of rehabilitation without shorter real time effective sentences, in order to adhere to false claims of protecting the society has disturbed the rendering of justice in homicide crimes to a larger extent.

·        Substantive defenses of necessity, duress, provocation as a partial defense to murder, insanity, intoxication and automatism have roles to play in the contexts of homicide and such factors come in the way of trying and deciding on the homicidal cases.

·        The accused have too many rights at the expense of the rights of victims and very often instances have been sighted that the crown attorneys adopting trial tactics for representing victims. The role for allowing the victims to participate at the guilt phase of the trial or in plea bargaining as well as moves to compensation and dispute settlement often vitiates the process of homicidal trials.


“Due Process of law implies and comprehends the administration of laws equally applicable to all under established rules which do not violate fundamental principles of private rights, and in a competent tribunal possessing jurisdiction of the cause and proceeding upon justice. It is founded upon the basic principle that every man shall have his day in court, and the benefit of the general law which proceeds only upon notice and which hears and considers before judgement is rendered.” (State v. Green, 232 S.W.2d 897, 903  Mo. 1950).

The above gives a fair account of the “Due Process of Law” and the third and final part of this study paper deals with this phenomenon of judicial system, which is prevalent for considerably longer periods of history and civilization.

“The Fourteenth Amendment contains two expressions which were not only found already in the original Constitution, but had before that been technical terms of long standing in the common law. The phrase “privileges and immunities” was found in Article IV Section 2, and was commonly used in charters and grants under the common law. “Due process of law” was found in the Fifth Amendment. Its inspiration could be traced back to the 29th Chapter of Magna Carta, and its specific language to the stuatue of 28 Edward III.”- (Article:  Chapter Seven: The fourteenth Amendment – Terms of Art)

“In administering justice, all state courts in the U.S. must adhere to certain principles firmly anchored in constitutions, tradition, and law. These principles are defined and described in greater detail by the Trial Court Performance Standards (TCPS) and Appellate Court Performance (ACPS) Standards developed by national commissions of judges and lawyers and the National Center for State Courts. (The TCPS and ACPS are voluntary standards that courts may use to measure their performance. Their development was supported by grants from the Bureau of Justice Assistance and the State Justice Institute.)

❍ First, and foremost, they must follow the law and base decisions only on legally relevant factors;

❍ Second, they must be impartial and treat everyone equally;

❍ Third, while maintaining their decisional and administrative independence, they must be accountable for their decisions, operations, and use of public resources;

❍ Fourth, they must be open to all and conduct their work openly; and

❍ Fifth, they must be effective and expeditious.

– (Richard Van Duizend 2003)

In order to achieve the above-said objectives it is important that the ‘due process of law’ is carried out without fail

The term Due process of law derives its origin from the common law of tradition and may be treated as a continuation of the history of the phrase “law of the land” found in Chapter 29 of Magna which was originally issued in the reign of King John, but it first appeared in the English statutes as renewed in 9 Henry III (1225). Chapter 29 provided that

No freeman shall be taken, or imprisoned, or disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwide destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. (2) We will sell to no man, we will not deny or defer to any man either Justice or Right.

 [9 Henry 3 Staat 1 C. 29 (1225), 1 Statutes at Large 7-8]


“The essential elements of due process of law are notice, an opportunity to be heard, and the right to defend in an orderly proceeding.” Fiehe v. R.E. Householder Co., 125 So. 2, 7  Fla. 1929).

This judgment delivered in 1929 brings out the implications of this term precisely.  The historical evolution of ‘due process of law’ can be traced back as below;

·        The Five Knights case in 1627 was one of the milestones in the seventeenth century struggle against Stuart absolutism and was an important step in the direction of providing for a “due process of law”.

·        In 1640 when the king’s position had deteriorated, Charles I assented to the abolishing of ‘Star Chamber’; which signaled the ascendancy of the parliamentary construction of due process and still reduced the power of the prerogative courts

Moving forward more than a century, we find Blackstone identified due process with regular common law judicial proceedings.  Hence as Blackstone understood it, due process was a limitation on the caprice of the crown and its servants, including judicial magistrates and he also identified as requirement of due process that the courts be open to all and free from corruption and irregularities and that justice should not be ‘for sale or denied or delayed’.

After the reign of Queen Anne, under the Hannoverians, the Whig oligarchy transformed the British Constitution in to its modern form of legislative-executive fusion under a Parliamentary system. King George III and the his successors came to terms with their largely ceremonial role and saw the notion of “due process” as a restraint on the government to be a historical curiosity in modern Britain.

Overall, as Hannis Taylor put it, the traditional English understanding of due process could be contrasted to the civil law concept of administrative law:

…due process of law stands as the anti-pole of what French jurists call droit administratif, which rests upon the assumption that the government and each of its servants possesses a body of special rights and privileges as against private citizens to be fixed on principles different from those defining the legal rights and duties of one citizen toward another. Under that theory, speaking generally, the ordinary tribunals have no concern with the administrative law (droit administratif), as applied by administrative courts (tribunaux administratifs), at the head of which stands the Council of State.

[Hannis Taylor 353]

·        Since the Common law of American colonies and states was a direct continuation and outgrowth of the English heritage the common law was their patrimony belonging of right to the transplanted Englishmen who carried it with them. Accordingly the Americans from the time of earliest settlement embodied the English heritage of due processes and “law of the land” interchangeably in their fundamental laws and statutes.

·        Thus it may be seen that the Fourteenth Amendment contained the expression  “due process of Law” which already found its place in the fifth amendment and also the inspiration for inclusion of this term may be traced back to the 29th chapter of Magna carta and its specific language to the statue of 28 Edward III.

Quite a number of judgments have been passed by the Supreme Court of the United States concerning the Fourteenth Amendment of the Constitution and the due process of law. In he case Wilbert Rogers Vs State of Tennessee, the Question of “Whether the retroactive application of a judicial abolishment of the substantive rule of criminal law known as the “year-and-a-day rule” to an assault committed five years prior to that abolishment violates the Fourteenth Amendment of the United States Constitution?  was put to the Supreme Court and it was argued that the Fourteenth Amendment’s guarantee of due process of law was violated by the retroactive application of the Tennessee Supreme court’s Abolition of common Law “year-and-a-day rule”.

The Supreme Court ruled “The opinion the Supreme Court of Tennessee in Wilbert Rogers’ case should be reversed. The Court’s action was a significant departure from the longstanding common law and case precedents in this state. As it cannot be characterized as an expected or anticipated development in the law, retroactive application of the judicial abolishment of the year-and-a-day rule to Petitioner violated the Fourteenth Amendment of the United States Constitution. This case should be remanded to the Supreme Court of Tennessee for a determination as to whether Petitioner’s sentence may be modified to a lesser offense or whether a new trial is required.”- (Wilbert K. Rogers  Vs  State of Tennessee)


By an act of Parliament of the United Kingdom in 1867 three British colonies in North America—Nova Scotia, New Brunswick, and Canada—were united as “one Dominion under the name of Canada”.  Provisions were also made that the other colonies and territories of British North America might be admitted to Canada later. It also divided the province of Canada into the provinces of Quebec and Ontario and provided them with constitutions. The act served as Canada’s “constitution” until 1982, when it was renamed the Constitution Act, 1867, and became the basis of Canada’s Constitution Act of 1982, by which the British Parliament’s authority was transferred to the independent Canadian Parliament – (British North America Act)

The Canada’s British North America Act 1867 or The Constitution Act 1867 saw the beginning of the Canada’s efforts to achieve a political self Government. Several provinces were combined to make the modern state of Canada and from this point a Westminster style government with a Parliament were adopted and a Governor General fulfilled the constitutional duties on behalf of Great Briton.

Although the Canadian Parliament was given the powers for amending the constitution, an Act of the British Parliament was still required to make some amendments in the constitution. However, with the passing of the Canadian Act 1982, the United Kingdom ended its involvement in further amendments to the Canadian Constitution. The passing of the Constitution Act 1982 did not mean an end to the constitutional evolution of Canada. There have been numerous changes to the Act affecting different provinces.


“This marked the first time a charter of rights had been included in any Canadian Constitutional document. Because of this, courts were given a much greater say in government and can now disallow legislation on the basis of violation against the charter of rights. It also

·        Made specific mention of Aboriginal rights

·        Included the “not withstanding clause” which allows a province to override the Charter of Rights.

·        Set the rules for further amending the constitution” – (Article: 1982-2002: The Modern Constitution)

In contrast to the American constitution, which was formed early in the life of that country, and other laws were built around it, the federal government and the provinces created the Constitution Act 1982 r