17 May 2005
A New-Olde Defense
So, I'm looking through my boxes of old books last night trying to find the Ranger Handbook I had when I was in the Army so I could settle a point I'd been discussing with another veteran (hopefully the caveat will keep Homeland Security from knocking on my door). There's a whole bunch of law school books, the MicroMash study books from my study at home Bar course, a lot of books about various religions from my undergrad (including my Arabic Bible, a Koran, and my Biblica Hebraica) but no Ranger handbook.
However, I did run across a copy of The Palladium of Justice: Origins of Trial by Jury and started to reread it. In so doing I ran across this forgotten gem: the writ of odio et atia - the writ of "spite and hatred."
The writ became part of English common law by statute in 1275. If someone charged a crime the defendant could file for this writ and have a jury impaneled to determine if the charge was filed out of - you guessed it - spite and hatred. If the jury so determined there was no trial on that charge (and since in 1275 we're talking about trial by combat that's an important point).
Hmmm . . . Virginia's a common law State. All the laws in place when the Commonwealth and the U.S. formed (much after 1275) have carried into our common law. The common law still exists unless statutorily changed. Statutes are to be construed to be in congruence with the common law and those that over rule the common law are to be narrowly construed.
I think I've just run across the perfect defense to about 50% of my A&B cases - perhaps as high as 75% of my domestic A&B cases. And if this applies to civil procedures pretty much every contested divorce and custody fight is doomed.
Now, which unsuspecting prosecutor and judge should I spring this upon . . .
Author: Ken Lammers on 5/17/2005