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252.8 Mistake Of Fact

    252.8.1 Miscellaneous Issues

    252.8.1.1 Mistake Or Ignorance May Negate An Element Of The Offense
    252.8.1.2 Improper To Limit Mistake Of Fact To Specific Intent Crimes
    252.8.1.3 Distinction Between Mistake And Ignorance Of Law
    252.8.1.4 Mistake Of Fact: Reasonable Doubt Favors Defendant
    252.8.1.5 Mistake Of Fact: Negation Of Knowledge Element
    252.8.1.6 Mistake Of Fact: Definition Of Good Faith
    252.8.1.7 Mistake As To Immunity From Prosecution
    252.8.1.8 Mistake Of Fact: Should Not Be Referred To As A "Defense"
    252.8.1.9 Mistake Of Fact: Distinction Between Mistake As To Element And Mistake As An Affirmative Defense
    252.8.1.10 Mistake Of Fact: Applicability When The Conduct Would Still Be Criminal
    252.8.1.11 Failure To Instruct On Mistake Of Fact As Reversible Error

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    252.8.1.1    Mistake Or Ignorance May Negate An Element Of The Offense

PRACTICE NOTE: "At common law, it is a good defense to have had an honest and reasonable belief in the existence of circumstances that, if true, would make the act for which the person is indicted an innocent act." (State v. Gonzales (NM 1983) 663 P2d 710, 712.) "It is a fundamental principle of Anglo-Saxon jurisprudence that guilt is personal and that it ought not lightly to be imputed to a citizen who ... has no evil intention or consciousness of wrongdoing." (State v. Lucero (NM 1975) 531 P2d 1215, 1217; see also Perez v. State (NM 1990) 803 P2d 249, 250.)  Thus, when it negates criminal intent honest mistake is a viable defense theory.  (See Cook and Hermann, Criminal Defense Checklist (West, 1996 ed.) § 1.04(5), p. 66; see also Wharton’s Criminal Law (West, 15th Ed. 1993) § 78, pp. 560-61.)

    There is no criminal liability for a general intent crime when the defendant held a mistaken belief which was (a) honestly entertained; (b) based on reasonable grounds and (c) of such a nature that the conduct would have been lawful and proper had the facts been as they were reasonably supposed to be.  (Perkins & Boyce, Criminal Law (Foundation Press, 1982) p. 1045; see also Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 5.09, comment [Mistake or Ignorance Of Fact (Suggested Instruction)] p. 812 (Lexis, 2nd ed. 1988).)

     Hence, the defendant has right to mistake of fact instruction notwithstanding accurate instruction on mental state and burden of proof. (See e.g., Cheser v. Commonwealth (KY 1994) 904 SW2d 239, 243 [despite no specific reference to the intent in the state code, error to not instruct on mistake of fact where defense was that defendant believed her newborn infant was already dead when she committed the acts which killed the infant]; see also Jewell v. Commonwealth (KY 1977) 549 SW2d 807, 812; State v. Landherr (MN 1996) 542 NW2d 686 [defense of mistake applied to attempted homicide where defendant believed victim was a wild turkey]; Reese v. State (NM 1987) 745 P2d 1146, 1149 [mistaken belief that victim was ordinary citizen is defense to assault-on-officer statute which requires knowledge that the victim is a police officer]; Willis v. State (TX 1990) 790 SW2d 307, 314; Beggs v. State (TX 1980) 597 SW2d 375, 378 [mistake of fact may be based on evidence that accused did not have the kind of mental state required for commission of the offense charged]; Stagner v. State (WY 1992) 842 P2d 520, 521.)

    See FORECITE National™ 252.8.1.5 [Mistake Of Fact: Negation Of Knowledge Element].

    See FORECITE National™ 252.8.2.3 [Unreasonable Mistake May Negate Criminal Intent Or Mental State].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.7 [Mistake Of Fact].

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PRACTICE NOTE: Limiting the doctrine of mistake of fact to the negation of "specific intent" may implicate the defendant’s constitutional rights. "To limit a mistake defense to mistakes negating a 'specific intent,' and to deny a defense for all other mistakes, is in effect to impose strict liability as to every circumstance element that does not require a 'specific intent.' That would be an absurd result that cannot have been intended by the legislature. [Citations.]" (Robinson, Criminal Law Defenses (West, 1984) § 62(c) p. 254.) Moreover, such a result would implicate the federal constitution. (See FORECITE National™ 45.1.2 [Proof Of Act Without Criminal Intent Is Insufficient To Convict].) A similar defect occurs when mistake is limited to negation of "criminal intent." (See Robinson, Criminal Law Defenses (West, 1984) § 62(c) pp. 254-56.)

    In other words, an honest and reasonable mistake of fact may negate criminal liability by negating criminal intent provided the conduct would not have been criminal had the facts been as the defendant honestly and reasonably believed them to be. (LaFave & Scott, Substantive Criminal Law (West, 1986) sec. 5.1., pp. 575-586) Hence, mistake of fact can apply to all mens rea offenses. (See e.g., People v. Stuart (CA 1956) 47 C2d 167, 175-76 [302 P2d 5] [mistake of fact precludes the culpable negligence needed for involuntary manslaughter]; see also In re Mario H. (NY 1980) 428 NYS2d 71, 74 [applying a statute permitting mistake of fact to negate reckless endangerment]; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:50 [Mistake Of Fact] (West, 1997) [person is relieved of  criminal liability based on a mistaken belief of fact which negates the required capable mental state]; COLORADO JURY INSTRUCTIONS, COLJI - Crim 7:02 [Effect Of Ignorance Or Mistake Upon Capability-Mistake Belief, Fact] (West, 1983); MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 5:06, comment [Mistake Of Fact] pp. 476-77 (Micpel, 1999).)

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.7 [Mistake Of Fact].

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PRACTICE NOTE: "It bears repeating here that the cause of much of the confusion concerning the significance of the defendant’s ignorance or mistake of law is the failure to distinguish two quite different situations: (1) that in which the defendant consequently lacks the mental state required for the commission of the crime and thus, as explained above, has a valid defense; and (2) that in which the defendant still had whatever mental state is required for commission of the crime and only claims that he was unaware that such conduct was proscribed by the criminal law, which, as explained below, is ordinarily not a recognized defense." (LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.1(d) p. 585; see also WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 770 [Mistake] (University of Wisconsin Law School, 1999).)

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.7 [Mistake Of Fact].

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RATIONALE: When mistake of fact serves to negate an element of the charge, the burden is on the prosecution to prove beyond a reasonable doubt that the defendant did not act under a mistake of fact.

POINTS AND AUTHORITIES: As with other defenses founded upon a factual contention which, if established, would tend to overcome or negate proof of an element of the charged offense such as identity (FORECITE National™ 31.2.15 [Mistaken Identity: Right To Instruction On Prosecution Burden]), or alibi (FORECITE National™ 251.2.3 [Alibi: Burden Of Proof]), the prosecution retains the burden of proof as to a mistake of fact which negates an element of the charge. (See FORECITE National™ 250.4.4 [Defense Theory Which Negates Element Of The Offense: No Burden Of Proof On The Defendant]; see also People v. Williams (CA 1992) 9 CA4th 209, 217 [11 CR2d 772] [defendant may obtain an instruction which directly relates the defense of mistake of fact to the prosecution's burden to prove specific elements of the charge].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.7 [Mistake Of Fact].

    If, after considering the evidence of mistake together with all the other evidence, you have a reasonable doubt whether the defendant had the [intent to _________] [mental state of __________], you must give the defendant the benefit of that doubt and vote to find [him] [her] not guilty.

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 2.91 [Burden of Proving Identity Based Solely on Eyewitness] p. 120 (West, 6th Ed. 1996).]

    [One of the defendant's theories of the case] [It is the defendant's theory of the case] that ___________________ <insert defense theory>. The burden is on the prosecution to prove beyond a reasonable doubt that the defendant did not ___________________ <insert defense theory>. If, after carefully considering all the evidence, you have a reasonable doubt as to whether the prosecution has met this burden, you must vote to find the defendant not guilty.

[Cf. NEW MEXICO UNIFORM JURY INSTRUCTIONS - CRIMINAL, UJI Criminal 14-5120 [Ignorance Or Mistake Of Fact] p. 619 (Lexis, 1998).]

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    See FORECITE National™ 252.8.1.1 [Mistake Or Ignorance May Negate An Element Of The Offense].

    See also FORECITE National™ 252.8.2.3 [Unreasonable Mistake May Negate Criminal Intent Or Mental State].

    See also FORECITE National™ 56.3.4 [Unwitting Or Accidental Possession].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.7 [Mistake Of Fact].

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PRACTICE NOTE: The phrase "good faith" is ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation. (See Mueller v. MacBan (CA 1976) 62 CA3d 258, 282 [132 CR 222].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.7 [Mistake Of Fact].

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PRACTICE NOTE: A mistaken but honest and reasonable belief by a defendant that he was immune from prosecution because he was working for a narcotics officer has been recognized as a defense to prosecution. (People v. Lucero (CA 1988) 203 CA3d 1011, 1015-18 [250 CR 354].)

    See also FORECITE National™ 64.6.2 [Accomplice Liability: "Feigned Accomplice" Defense].

    See also FORECITE National™ 252.10.1.1 [Defense Theory: Defendant's Belief That He Or She Was Acting As Agent Of Law Enforcement].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.7 [Mistake Of Fact].

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PRACTICE NOTE: For example, in Mississippi ignorance or mistake of fact is referred to as a "defense" but the jury is affirmatively instructed that it is the prosecution’s burden to prove the required criminal intent beyond a reasonable doubt. (MISSISSIPPI MODEL JURY INSTRUCTIONS - CRIMINAL, MJI-Criminal 2:9 [Mistake Of Fact] (West, 2000).)

    Similarly, in South Carolina the instruction committee admonishes that the prosecution has the burden of proof when the mistake goes to an element of the defense. (Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(E) [Mistake/Accident] (South Carolina CLE, 1994) p. 316.)

    See FORECITE National™ 6.2.12 [Defense Theory That Negates Element Should Not Be Referred To As A "Defense"].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.7 [Mistake Of Fact].

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PRACTICE NOTE: "The ignorance or mistake of fact instruction is applicable where there is ignorance or a mistake as to a fact relevant to the state of mind required to establish an element of the offense. Where, on the other hand, there is ignorance or a mistake as to a fact relevant only to a defense, other principles may apply. [e.g., reckless belief in need to use self defense]." (HAWAII PATTERN JURY INSTRUCTIONS - CRIMINAL, HAWJIC 7.13 commentary [Ignorance Or Mistake Of Fact] (West, 1998).)

    Thus, whether characterized as a "culpability requirement" or a "mistake defense" the defendant’s ignorance or mistake should preclude conviction if it negates a required culpability element of the charge. (Robinson, Criminal Law Defenses (West, 1984) § 62(b) pp. 245-46.) Any rule which limits this basic principle may be subject to challenge under the due process and trial by jury (5th, 6th and 14th Amendments) provisions of the federal constitution. (See FORECITE National™ 250.4.4 [Defense Theory Which Negates Element Of The Offense: No Burden Of Proof On The Defendant].)

    See also FORECITE National™ 252.8.1.8 [Mistake Of Fact: Should Not Be Referred To As A "Defense"].

    See also FORECITE National™ 270.4.1 [Reasonable Doubt As To Any Element Or Essential Fact By Any Juror Precludes Conviction].

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.7 [Mistake Of Fact].

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PRACTICE NOTE: Model Penal Code § 2.04(2) provides that ignorance or mistake is not available as a defense "if the defendant would be guilty of another offense had the situation been as supposed." (See also Wharton’s Criminal Law (West, 15th Ed. 1993) § 78, p. 562 [Mistake Of Fact: Requirement That Defendant Would Not Have Been Guilty Of Another Offense Had The Facts Been As He Believed Them To Be].) "For example, under section 2.04(2), if "A" believes he is burning a store but in fact burns a dwelling, a different offense, he may be held liable for burning a dwelling even though he does not satisfy the required mental element of that offense. His intention in causing the result he desired is in effect substituted for the intention required for the result he in fact caused." (Robinson, Criminal Law Defenses (West, 1984) § 62(c) p. 256.)

    In other words, an honest and reasonable mistake of fact may negate criminal liability by negating criminal intent provided the conduct would not have been criminal had the facts been as the defendant honestly and reasonably believed them to be. (LaFave & Scott, Substantive Criminal Law (West, 1986) sec. 5.1., pp. 581-84.)

    However, if the doctrine is viewed as a substituted or transferred intent, constitutional principles may require that the intent be equivalent, that is the other offense be one of similar blame-worthiness. (See Robinson, Criminal Law Defenses (West, 1984) § 62(c) p. 258.)  For example, in the case of transferred intent as to murder, it is the same intent (to kill) that is transferred from one victim to the other. (See e.g., FORECITE National™ 45.5 [Transferred Intent].)

    It is quite a different matter to transfer or substitute a lesser intent for a greater one. For example, if the defendant purchases a package which he believes to contain illegal fireworks but which actually contains illegal assault weapons, his illegal knowledge and intent as to the fireworks should not be viewed as equivalent to the knowledge requirement for the assault weapons. (See e.g., FORECITE National™ 45.1.1 [Requirement Of Criminal Intent Or Culpable Mental State: General Principles].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.7 [Mistake Of Fact].

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PRACTICE NOTE: Failure to instruct on the defense theory that mistake negated an element of the charge has been held to be reversible error. (See e.g., People v. Rivera (CA 1984) 157 CA3d 736 [203 CR 842] [in a prosecution for assault to commit rape, sua sponte charge on the defense of mistake as to consent must be given if the defense is raised by the evidence]; People v. Ellison (IL 1984) 466 NE2d 1024, 1032 [court erred in denying defendant's request for an instruction on mistake of fact negating an offense element; defendant's testimony that he believed he was helping a friend move property, rather than committing theft and burglary, together with evidence of defendant's borderline mental retardation (IQ) were adequate to raise the defense of mistake negating an element; rejecting state's claim that jury was properly instructed on defendant's theory of the case when they were instructed on the elements of theft and burglary].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.7 [Mistake Of Fact].