Mistakes About Illegality

Mistakes About Illegality

Everything taught so far concerns one kind of claim. The defendant was wrong about a fact or a legal matter, and the error left a mental state that a material element requires with nothing to rest on. Under § 2.04(1)(a) that mistake is a defense, because the offense cannot be proved without the purpose, knowledge, belief, recklessness, or negligence it demands.¹ A second claim sounds similar and works differently. Here the defendant knew what the conduct was and knew every surrounding fact, but did not know, or wrongly believed, that the conduct was a crime. Ordinary speech covers both claims with the phrase ignorance of the law, and running them together is the main reason this area has a reputation for confusion, since the two claims call for different analysis and often reach different results.² This section marks the boundary between them. In the paired examples below, the favorable pole is a mistake that supports a § 2.04(1)(a) defense, and the unfavorable pole is one that does not.

Ignorance of Criminality

Section 2.02(9) supplies the rule for the second claim. It provides that neither knowledge, nor recklessness, nor negligence as to whether conduct constitutes an offense, or as to the existence, meaning, or application of the law determining the elements of an offense, is an element of that offense, unless the definition of the offense or the Code so provides.³ The provision restates what an offense's mental element already consists of, namely culpable mental states toward the acts, circumstances, and results that make up the prohibited conduct. Once the prosecution proves those states for each material element, the mental element is complete, and the prosecution need not also prove that the defendant knew the offense definition itself unless the statute actually defines the offense to require that.⁴ The Code therefore recognizes two kinds of mistake of law: one about a legal circumstance that forms part of the offense definition, and one about the offense definition itself, sometimes called the governing law.⁵ The first can negate a required mental state and falls under § 2.04(1)(a). The second leaves every required mental state intact and falls under § 2.02(9).

The favorable pole is easiest to see in theft cases, because the element of property belonging to another is itself a conclusion about ownership. In State v. Varszegi, a landlord whose commercial tenant had missed rent payments believed the lease's default clause let him enter the office, pick the lock, and remove two computers, and the appellate court reversed his theft conviction. A defendant who honestly believes he has a lawful claim to the property lacks the intent to steal, and the claim need not have been reasonable.⁶ In Regina v. David Smith, a departing tenant tore out wall panels and floor boards that he had bought and installed, believing they were still his, although once affixed they belonged to the landlord as a matter of law. The court of appeal held that the offense's mental element reached the fact that the property belonged to another, so an honest belief in ownership defeated liability whether or not the belief was justifiable.⁷ In both cases the error concerned a legal matter inside an element, and it removed the mental state that element requires. Larceny shows the same thing in general form, since the crime is not committed when a mistaken understanding of property law leads the taker to believe the property is his own.⁸

The unfavorable pole changes what the defendant is wrong about. Larceny is committed when the defendant believed it lawful to take certain property belonging to others because of a community custom, since the offense condemns intentionally doing the forbidden act and does not require an intent to violate the law.⁹ The same is true of a defendant who took an umbrella knowing it belonged to another and could honestly say that he did not know such a taking was criminal, because the intent to steal is present.¹⁰ This is the only sense in which ignorance of the law is no excuse. It also explains a contrast that otherwise looks puzzling: a mistake of law that seemed reasonable was no defense in People v. Marrero, while Smith and Varszegi allowed mistakes of law that may have been unreasonable.¹¹ What separates the cases is the subject of the belief, a legal matter inside an element in the one group and the reach of the criminal law in the other, and the sensibleness of the belief does not enter into it.

The two versions differ in one fact, which is the subject of the error. In the first, the defendant misjudged the prohibition and had every mental state the elements call for. In the second, the defendant misjudged a legal fact that the elements are built around, so a required mental state is missing. The trap on an exam stem is to treat ignorance that the conduct was criminal as if it were ignorance of an element, because both can be described as a mistake of law. The reliable approach is to ask what the belief was about: if it concerns a fact or legal circumstance named in the offense definition, run the negation test, and if it concerns whether the conduct is forbidden, § 2.02(9) ends the inquiry unless the offense definition says otherwise.

The older explanation for this rule, that everyone is presumed to know the law, does not survive scrutiny. Whatever plausibility it had when the criminal law was small, no one today can know all of the statutes and decisions that define criminal conduct, and the maxim never accounted for cases in which the defendant had excellent reason not to know the law.¹² The doctrine rests instead on the offense's own mental element, which is directed at the conduct and its circumstances rather than at its illegality. If ignorance of the law excused, the defendant's knowledge, and not the law of the land, would fix what the defendant could lawfully do, and the claim is so easy to fabricate that the availability of the defense could itself invite violations.¹³ A further difficulty arises if awareness of illegality is treated as an element. Due process requires the prosecution to prove every element rather than presume it, so every prosecution would turn on proof of what the defendant knew about the statute book, and the defendant least interested in learning the law would be best protected.¹⁴

The qualifier in § 2.02(9), unless the offense definition or the Code provides otherwise, matters because some statutes make legal knowledge part of the mental element. In Cheek v. United States, a tax resister charged with willfully failing to file returns claimed he sincerely believed his income was not taxable, and the Supreme Court held that a bona fide mistake about the tax law would negate willfulness, although a belief that the tax code was unconstitutional would not.¹⁵ In Rehaif v. United States, the Court read the federal firearms statute to require proof that the defendant knew he was unlawfully in the United States. It reasoned that the maxim does not reach a mistaken impression about the legal effect of a collateral matter that leaves the defendant misunderstanding the full significance of his conduct.¹⁶ Both decisions turn on the wording and structure of the particular offense, so the exam question is whether the statute itself calls for that knowledge, and the default under § 2.02(9) applies when it does not.

The same boundary appears outside the ordinary law of mens rea. In international criminal law, article 32 of the Rome Statute treats a mistake about whether conduct is a crime within the Court's jurisdiction as no ground for excluding responsibility, although a mistake of law may excuse if it negates the mental element.¹⁷ In Heien v. North Carolina, a Fourth Amendment case about a traffic stop and not a case about criminal liability, the Court observed that the maxim is symmetrical: an individual generally cannot escape criminal liability through a mistaken understanding of the law, and the government cannot impose criminal liability through one.¹⁸

Narrow Statutory Exceptions

Because § 2.02(9) can convict a defendant who had no idea the conduct was criminal, the Code offers a narrow response in § 2.04(3). It makes a belief that conduct does not legally constitute an offense a defense in two situations. In the first, the enactment defining the offense was not known to the actor and had not been published or otherwise reasonably made available before the conduct. In the second, the actor acted in reasonable reliance on an official statement of the law, afterward determined to be invalid or erroneous, contained in a statute or other enactment, a judicial decision, an administrative order or grant of permission, or an official interpretation by the public officer or body charged with responsibility for the law.²⁰ Both are fair-notice excuses, and each answers the unfairness of § 2.02(9) by pointing to a failure of the state: it either kept the law from the public or itself said the conduct was lawful.²¹ The next chapter treats these exceptions in full, so this section notes only how they differ from the negation defense.

The difference shows in the burden of proof. When a mistake negates a mental state that is an element, the prosecution must prove that element, and due process, as applied in Mullaney v. Wilbur, requires proof beyond a reasonable doubt of every fact necessary to constitute the crime charged.²² A § 2.04(3) defense negates no element, since the defendant had every required mental state, so it works as an excuse that the defendant must establish. Section 2.04(4) accordingly requires the defendant to prove it by a preponderance of the evidence.²³ The reliance branch is also limited by its text to official sources. A defendant who relied on a published appellate decision later overturned is within it, but advice from the defendant's own lawyer is almost universally rejected as a defense, and even erroneous advice from a government official generally helps only when the official is charged with administering the statute.²⁴ Reasonableness also enters here in a way it does not for purpose, knowledge, or belief, where an honest mistake suffices, since the reliance exception asks that the reliance itself be reasonable.

These boundaries show how to read the two familiar maxims. Neither is precisely correct as usually stated.²⁵ The saying that ignorance of the law is no excuse holds for ignorance that conduct is criminal, and even there it yields to the fair-notice exceptions of § 2.04(3). The saying that a mistake of fact is an excuse holds only for a mistake that negates a mental state the offense requires, and the same condition governs a mistake of law about a legal matter inside an element.²⁶