Ex parte Milburn

The Marshall Court (1801–1835) heard forty-one criminal law cases, slightly more than one per year. Among such cases are United States v. Simms (1803), United States v. More (1805), Ex parte Bollman (1807), United States v. Hudson (1812), Cohens v. Virginia (1821), United States v. Perez (1824), Worcester v. Georgia (1832), and United States v. Wilson (1833).

During Marshall's tenure, the Supreme Court had no general appellate jurisdiction in criminal cases. The Court could review criminal convictions from the state courts, but not the lower federal courts, via writs of error. It only did so twice. The Court could hear original habeas petitions, but disclaimed the authority to grant the writ post-conviction unless the sentence had already been completed. Thus, the majority of the Marshall Court's opinions on criminal law were issued in response to questions certified by divided panels of the circuit courts by a certificate of division.

Most of the Marshall Court's criminal opinions involved defining the elements of federal crimes. Criminal statutes considered by the Court during this period involved assimilative crimes, counterfeiting, embargoes, insurance fraud, piracy, and slave trading. But, the Court twice disclaimed the authority to define common law crimes not proscribed by Congressional statute.

The Marshall Court also issued important opinions regarding criminal procedure. Although the Court did not explicitly cite or quote constitutional provisions, its opinions remain influential in interpreting the Double Jeopardy Clause of the Fifth Amendment and venue provision of Article Three. The Court also laid down the common law rules of evidence in federal courts, including the hearsay exception for party admissions and the narrowing of the best evidence rule.

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