3: Statutory Synthesis

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Beth R. Pless, J.D. (Northeast Wisconsin Technical College)
Santa Ana College

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Let’s dig a little deeper into statutory synthesis tools and methods.

Example - Mr. Willy Wonka

To give us some context, suppose we have a client, Mr. Willy Wonka, who has come to our law office because he was recently charged with arson. Our factual research revealed the following facts:

A fire started at the Chocolate Factory, located in Santa Ana, California at approximately 1 a.m. on January 30.
The factory had been closed since 5 p.m. on January 29.
No one was in the building and no equipment was operating at the time of the fire.
The fire caused $1,000,000 in damage to the factory.
Mary Worth, who lives across the street from the factory, stated that at around 1:30 a.m. on January 30, she saw a man dancing in the street in front of her house. This man was wearing camouflage clothing and was repeatedly shouting, “Burn baby burn!” Mary Worth was shown a photo lineup of potential suspects and identified our client, Willy Wonka, as the man she saw.
The Fire Inspector found accelerants at several sites around the outside of the factory.
The Chocolate Factory is insured by Safeco Ins. Company (policy number FA6660297-SW)
The Chocolate Factory is jointly owned by Wonka and another man, Charlie Bucket.
Currently, Charlie Bucket is under investigation for improper business practices. The Chocolate Factory’s financial records are being audited by Weegocha Auditing Company. The investigation and audit have revealed
- The Chocolate Factory has been operating at a loss for three years
- $1,000,000 is currently unaccounted for (or missing) from the financial records
Both Bucket and Wonka have Preferred Player’s cards at LaCasino, a local gambling casino. Preferred Player’s cards are issued only to $1,000,000 players.
When the police interviewed him, Bucket stated that he was unaware of any plan to set a fire at the Chocolate Factory, and that he would not have consented to such a plan if he were aware of it.

At this point, Wonka has been charged only with arson. There is no charge that he defrauded the insurance company. Based on these facts and the criminal charge, our first step is to locate the California statute that defines the crime of arson. After we locate and read the statute, we need to perform an in-depth micro-synthesis to determine whether it applies to Wonka, and if so, how it might apply to Wonka. In criminal cases, a conviction is appropriate only if each and every one of the statute’s requirements are met; therefore, it is very important to know what the requirements, or “elements,” of arson are in California. Each element will become a sub-issue or sub-question of the broad question of whether Wonka is likely to be convicted of arson.

But first, the arson statute …

Arson

California Penal Code section 451: A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property.

Whoa, there are a lot of pieces to this puzzle! There are several different circumstances described. There is a section that uses items that are defined in other statutes like "structure" and other words that aren’t defined, like "aids" and "willfully" – and some of those words could have several meanings. While it’s good to recognize these complexities, let’s not get bogged down by them. Micro-synthesis starts with the actual language of the statute and nothing more.

Micro Synthesis Tools for Statutes

There are a few options with respect to synthesizing statutes. Which ones you use depends on the type of authority you are trying to synthesize, and which tools work best for you personally. Sometimes it’s helpful to use them all, especially when you are new to synthesizing. The ones we will look at are 5W and 1H (who, what, when, where, why how), and the Statutory Elements approach. Each has advantages and disadvantages, depending on the type of statute you are synthesizing, the complexity of the statute and the complexity of the client’s facts.

5W + 1H Approach

This is one of the most basic tools. What does the statute tell us with respect to who, what, when, where, why, and how it applies? These are the “facts” or requirements of the statute. Each factor or requirement must be met for the statute to apply, so it’s important to include every word in the statutes in your 5W + 1H analysis. It's helpful to copy the statute into a document and then cross out each word as you put it into your 5W + 1H.

When using 5W + 1H, be very careful when dealing with statutes that have:

“or” requirements – in other words, only one item out of the list must be proven
Combinations of “or” and “and” requirements – only one item out of the first list of items must be proven, AND at least one other item must be proven
References to other statutes as part of the requirements
Exceptions to the general rule – usually indicated by “unless” or “except” or “this statute/section does not apply if”

Our arson statute is a criminal statute, and knowing the typical characteristics of criminal statutes is helpful. Most often, criminal statutes are not specific as to who, when, or where. In California, criminal statutes typically have “a person” or “any person” as the description of to whom it applies. Similarly, California criminal statutes are frequently silent as to when (which then means “any time”) and where (as long as it happens in California, this requirement is satisfied). Statutes usually are also silent regarding “why” they apply. Criminal statutes are more concerned with “what” actions are prohibited and “how” those actions must be undertaken. With that in mind, let’s take a look at our arson statute again:

Arson

Who = a person

What = the following actions are prohibited as criminal arson:

sets fire to any structure, forest land, or property
OR burns any structure, forest land, or property
OR causes to be burned any structure, forest land, or property
OR aids the burning of any structure, forest land, or property
OR counsels the burning of any structure, forest land, or property
OR procures the burning of any structure, forest land, or property

When = at any time

Where = in California

Why = because the statute says so

How = the action of setting the fire or using explosives must be done

willfully AND
maliciously

When a statute lists multiple ways to meet its requirements, it’s important to highlight those differences. Every word matters and each circumstance must be fully and separately analyzed.

Synthesizing this statute requires reference to a different statute that defines some of the terms found in Penal Code section 451. Under Penal Code section 450:

(a) “Structure” means any building, or commercial or public tent, bridge, tunnel, or powerplant.

(b) “Forest land” means any brush covered land, cut-over land, forest, grasslands, or woods.

(c) “Property” means real property or personal property, other than a structure or forest land.

* * *

(e) “Maliciously” imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.

Here is a helpful worksheet you to use with the 5W + 1H statutory synthesis method.

COMPLETE CITATION OF STATUTE: Pen. Code, § 451

COMPLETE CITATION OF RELATED STATUTE: Pen. Code, § 450

QUESTION	STATUTORY REQUIREMENTS
WHO:	a person
WHAT:	sets fire to any structure, forest land, or property OR burns any structure, forest land, or property OR causes to be burned any structure, forest land, or property OR aids the burning of any structure, forest land, or property OR counsels the burning of any structure, forest land, or property OR procures the burning of any structure, forest land, or property
WHEN:	any time
WHERE:	in California
WHY:	because the statute says so
HOW:	the action must be willful AND malicious, meaning "imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law"
EXCEPTIONS?	There are no “unless” or “except” statements in the statute

One advantage to using this approach is that it’s very easy to put in your client’s facts and see how the statute’s requirements are or are not met. When adding the client’s facts, be very detailed! It’s better to put in facts that might not quite matter than to leave any out. You may also find that some client facts overlap or are repeated in more than one category of 5W + 1H. That’s perfectly fine! Again, that overlap or repetition results in a deeper, more detailed synthesis that will serve you well when you are ready to do macro-synthesis of the statute and other legal authorities – and even more so when you are ready to begin writing your legal research memorandum. When performing analysis and synthesis, more detail is always better.

Here is an example of how this worksheet might be completed with Mr. Wonka’s facts.

COMPLETE CITATION OF STATUTE: Pen. Code, § 451

COMPLETE CITATION OF RELATED STATUTE: Pen. Code, § 450

QUESTION	STATUTORY REQUIREMENTS	CLIENT’S (Willy Wonka’s) FACTS
WHO:	a person	Wonka is a person
WHAT:	sets fire to any structure, forest land, or property OR burns any structure, forest land, or property OR causes to be burned any structure, forest land, or property OR aids the burning of any structure, forest land, or property OR counsels the burning of any structure, forest land, or property OR procures the burning of any structure, forest land, or property	A fire was set and the Chocolate Factory was damaged ($1 million); The Chocolate Factory is a structure Wonka may be suspected of burning or causing to burn the structure Wonka may be suspected of procuring, counsling, or aiding in the burning of the factory
WHEN:	any time	January 30, 1 a.m.
WHERE:	in California	Fire occurred in Santa Ana, California
WHY:	because the statute says so	n/a
HOW:	the action must be willful AND malicious, meaning "imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law"	Wonka dancing in the street in front of the house Wonka wearing camouflage clothing Wonka repeatedly shouting, “Burn baby burn!”
EXCEPTIONS?	There are no “unless” or “except” statements in the statute	n/a

Statutory Elements Approach

The nice part about this approach is that you might have jury instructions to help you with understanding how each element would need to be proven to a jury. This can be especially helpful with criminal statutes. You still want to give meaning to every word and phrase appearing in the statute, but some of the repetition of 5W + 1H is removed. Here’s the same arson statute, done using this approach:

COMPLETE CITATION OF STATUTE: Pen. Code, § 451

COMPLETE CITATION OF RELATED STATUTE: Pen. Code, § 450

ELEMENTS	STATUTORY REQUIREMENTS	CLIENT’S (Willy Wonka’s) FACTS
ELEMENT #1	a person	Wonka
ELEMENT #2	willfully	Wonka dancing in the street in front of the house Wonka wearing camouflage clothing
ELEMENT #3	maliciously	Wonka repeatedly shouting, “Burn baby burn!”
ELEMENT #4	sets fire to any structure, forest land, or property OR burns any structure, forest land, or property OR causes to be burned any structure, forest land, or property OR aids the burning of any structure, forest land, or property OR counsels the burning of any structure, forest land, or property OR procures the burning of any structure, forest land, or property	A fire was set and the Chocolate Factory was damaged ($1 million); The Chocolate Factory is a structure
EXCEPTIONS?	There are no “unless” or “except” statements in the statute	n/a

What does our micro-synthesis tell us? Our micro-synthesis also tells us we have more questions to answer before we can advise our client whether it’s best to take a plea deal or go to a jury trial:

What does “willfully” mean and how is it proven?
What evidence is needed to connect Wonka to setting the fire?
Is the evidence against Wonka sufficient to meet the legal standard of "maliciously" as defined in Penal Code section 450?
Is Bucket liable for arson if he lied to the police about his knowledge of the fire?

And so, the cycle begins again. We have synthesized the arson statute into its requirements or elements, and we need to locate legal authorities that help us understand the meaning of several words/phrases in the statute: “willfully,” “maliciously,” and “counsel” to answer that question.

When there are no statutes to help, we need to look to other legal authorities, such as case law, jury instructions, or other secondary sources. We will want to do this separately for each word/phrase (“willfully” and “counsel”) we still need to define. Again, it’s best to organize your research notes by creating a separate page for each legal issue – what does “willfully” mean? What does “counsel” mean?

You will go through the process of locating and micro-synthesizing authorities for each requirement or element of the statute that you decide to research. When you are done researching, you should have several research pages documenting your research. In other words, you will have sorted the puzzle pieces into several distinct picture piles, with each pile representing a different part of the puzzle picture.

Once we find those legal authorities and synthesize each of them, the next step will be to perform macro-synthesis to see how it all fits together. And then, we will know all there is to know about the crime of arson against buildings in California.

Contributors

3: Statutory Synthesis is shared under a CC BY-SA 4.0 license and was authored, remixed, and/or curated by Beth R. Pless, J.D. (Northeast Wisconsin Technical College) & edited and curated by James C. Harman, Assistant Professor, Santa Ana College.

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