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This note examines how the rule of lenity is applied in the Montana Supreme Court and ultimately demonstrates that the Court’s understanding of the rule’s application is not always clear. The first application of the rule of lenity occurred in 1922. From 1922 to 1933, the Montana Supreme Court applied the rule of lenity, despite it not being codified in Montana since 1895. In 1934, the Court correctly cited to the statute that abrogated the common law rule of strict construction in Montana by looking to the Revised Codes of 1921. However, only four years later, in 1938, the Court returned to the application of the rule of strict construction until 1993. In 1993, in State v. Turner, the Court notably did not apply the rule of lenity to the penal code in Montana. Defendants continued to challenge the Court’s holding in Turner by raising the rule of lenity, but the Court continued to follow the rule of strict construction, without regard to whether that construction favors the defendant, after Turner. Since 1993, the Court has not actually applied the rule of lenity. The Court allows the rule of lenity to cause commotion in cases but refuses to give it force. Without its application in cases where it has been raised, the rule is simply a noisemaker rather than a tool of statutory interpretation.

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