A Legal Overview of Mistake of Fact and Mistake of Law as Criminal Defenses

06/06/2017 01:10 pm ET

A Legal Overview of Mistake of Fact and Mistake of Law as Criminal Defenses

Typically, conviction of a criminal offense requires a finding of “mens rea” (guilty mind) in addition to the commission of a wrongful act (“actus reus”). Traffic offenses are a major exception to this requirement in that one may be found guilty of speeding without proof that one intended to break the speed limit. Contemporary criminal codes frequently substitute words such as purposely, knowingly, recklessly, or negligently for the traditional term mens rea. A legitimately mistaken belief may negate the state of mind requirement. This comment provides a brief and incomplete educational overview of mistakes of fact and law as legal defenses in criminal cases. Always consult an experienced attorney in specific situations.

Mistake of Fact

Many state criminal codes provide that it is a defense if the accused mistakenly formed a reasonable belief concerning a fact and this mistaken belief negated the culpable mental state required for the conviction of the offense. For example, an individual took an old and rusty motorcycle with expired tags that was parked behind a repair shop next to some trash bins in the belief that it was abandoned [People v. Russell, Cal. Court of Appeals, 2006]. The defendant testified that he attempted to find the owner before he took the motorcycle. The defendant was entitled sua sponte (on the Court’s own motion without a request) to have the jury consider his mistake of fact defense. Of course, the jury could choose to believe or disbelieve this explanation.

A 2016 California Supreme Court decision held that a mistake of fact defense jury instruction must be requested by the defendant.

A conviction of another offense is still possible if the fact in question would make no difference. In the example above, suppose the individual charged with taking the motorcycle had also been charged with trespassing. Ownership of the motorcycle would not be relevant.

Note that it is the state of mind of the defendant that is at issue. That someone else might have thought the motorcycle was abandoned and told the defendant that he could take it is typically not relevant concerning the defendant’s state of mind.

There are more situations that raise the mistake of fact defense than one might suppose. For example, thinking that a gun was unloaded, thinking a child’s bath water was a normal temperature, thinking one had consent to use a vehicle, acting under instructions from a supposed police officer, exercising self-defense against a police officer not in uniform and not in possession or a badge or marked patrol car, thinking a syringe one received contained vitamins rather than methamphetamine are all examples raising a possible mistake of fact defense.

The mental state of an ordinary prudent person is the typical standard to determine if the mistaken belief were reasonable. Mental disease or delusional thinking does not raise the defense. Reasonableness of the mistaken belief is determined by the jury. Hence, even weak or contradicted evidence from a questionable source may be submitted to the jury with a mistake of fact instruction.

One may not hide from the truth (willful blindness) and assert mistake of fact as a defense.

As the U.S. Supreme Court explained in a 2011 8:1 decision:

“[Willful blindness has] two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact. We think these requirements give willful blindness an appropriately limited scope [in situations involving induced patent infringement]. Under this formulation, a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts.” [Global-Tech Appliances v. SEB S.A.]

In terms of trial strategy, experienced legal counsel must analyze if asserting a mistake of fact defense may lower the bar for conviction in the mind of the jury from beyond a reasonable doubt to simply reasonable. That is, if the jury concludes that the mistaken belief is unreasonable, will the jury then automatically vote to convict regardless of other evidence raising doubt?

Mistake of Law

Since everyone is presumed to know the law, a mistake of law defense in a criminal case is difficult to assert. Essentially one must have either a written order or interpretation from a relevant administrative agency, or a written interpretation of the law from an appropriate court or public official. Advice of counsel as a defense is possible if one seeks legal advice in good faith, disclosing all the relevant facts, and reasonably relied upon and followed the advice.

In asserting a mistake of law, one knows the facts but misapprehends the legal consequences of these facts. While it is understood that no one literally knows all the law, the fiction of knowledge “rests on public necessity; the welfare of society and the safety of the state depend upon its enforcement…[otherwise] immunity from punishment would in most cases result” [People v. O’Brien, Cal. Supreme Court, 1892]. This Court noted the difficult task in determining if the ignorance of law were justifiable and the absurd result that greater ignorance would produce less legal liability.

In one unusual case, an individual was charged and convicted of the unlawful possession of a weapon (firearms and hunting bows) by a felon. However, the conviction was overturned by the Delaware Supreme Court [Kipp v. State, 1998].

As the Delaware Supreme Court explained:

“The 1990 guilty plea form, which was submitted into evidence, has a space which provides that a guilty plea will result in loss of the right to possess deadly weapons. That portion of the form was marked "N/A." Kipp testified that "N/A" meant the provision did not apply to him. The completed guilty plea form was provided to the judge during the 1990 plea colloquy. Neither the prosecutor nor the judge, however, brought the error on the guilty plea form to Kipp's attention.”

“This Court has held that, in very narrow circumstances, mistake of law can be a defense to a criminal charge…. That defense is cognizable when the defendant: (1) erroneously concludes in good faith that his particular conduct is not subject to the operation of the criminal law; (2) makes a "bona fide, diligent effort, adopting a course and resorting to sources and means at least as appropriate as any afforded or under our legal system, to ascertain and abide by the law;" (3) "act[s] in good faith reliance upon the results of such effort;" and (4) the conduct constituting the offense is "neither immoral nor anti-social."

In the interest of full disclosure, this 1998 decision must be carefully used as a precedent because a subsequent decision of the Delaware Supreme Court determined that hunting bows were unquestionably deadly weapons, something the 1998 decision questioned because Kipp’s trial court conviction was only based upon possessing the firearms.

Note that virtually all successfully asserted mistake of law defenses require some external documentation from an applicable governmental official or agency that is reasonably relied upon. A private and personal opinion concerning a law; for example, a belief that it is unconstitutional or has been repealed or overturned, will not support a mistake of law defense.

Again, experienced legal counsel must determine if an asserted mistake of law defense will engender empathy and sympathy from the jury or be perceived as either a laughable or insulting assertion, perhaps made by one who apparently thinks she or he is above the law.

Mistake of Law Made By a Police Officer

This brief comment cannot adequately address in depth the law surrounding police mistakes. Consult an experienced attorney in specific situations.

In passing, a much commented upon 2014 U.S. Supreme Court 8:1 decision [Heien v. North Carolina] involved a mistaken traffic stop for one burned-out brake light. As a result of this stop, pursuant to a consensual vehicle search, cocaine was found and felony charges resulted. The North Carolina traffic statute in question only required a single functioning stop lamp that the vehicle possessed.

The defendant asserted that since the initial traffic stop was unwarranted, the cocaine was unlawfully seized and should be excluded from evidence. The Supreme Court majority found the initial traffic stop to be reasonable and allowed the evidence to stand.

The majority opinion wrote:

“[The defense assert] the well-known maxim, “Ignorance of the law is no excuse,” and contend that it is fundamentally unfair to let police officers get away with mistakes of law when the citizenry is accorded no such leeway. Though this argument has a certain rhetorical appeal, it misconceives the implication of the maxim. The true symmetry is this: Just as an individual generally cannot escape criminal liability based on a mistaken understanding of the law, so too the government cannot impose criminal liability based on a mistaken understanding of the law. If the law required two working brake lights, Heien could not escape a ticket by claiming he reasonably thought he needed only one; if the law required only one, Sergeant Darisse could not issue a valid ticket by claiming he reasonably thought drivers needed two. But just because mistakes of law cannot justify either the imposition or the avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop. And Heien is not appealing a brake-light ticket; he is appealing a cocaine-trafficking conviction as to which there is no asserted mistake of fact or law.”

Justice Sotomayor in dissent perceived “…further eroding the Fourth Amendment’s protection of civil liberties… .”

Sotomayor concluded her analysis with the following:

“To my mind, the more administrable approach—and the one more consistent with our precedents and principles—would be to hold that an officer’s mistake of law, no matter how reasonable, cannot support the individualized suspicion necessary to justify a seizure under the Fourth Amendment. I respectfully dissent.”

Critics of the majority decision assert that it authorizes essentially any form of police traffic stop and a resulting pretextual detention and search of the vehicle in violation of the restrictive intent of the Fourth Amendment. In any event, the majority opinion is an illustration of the U.S. Supreme Court majority’s contemporary tendency to defer to police actions.

More recently, Justice Sotomayor dissented from a 2016 U.S. Supreme Court 5:3 decision involving an initially unlawful detention that resulted in the discovery of a valid arrest warrant for a traffic violation [Utah v. Strieff].

The majority opinion stated: “We hold that the evidence the officer seized as part of the search incident to arrest is admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.”

Justice Sotomayor wrote:

“The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.”

This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney in specific situations.

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