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Mistake of Law

5 October, 2015 - 14:48

The basis of the mistake of law defense is that the defendant believes his or her criminaconduct is legal. The defense could be a failure of proof defense or an affirmative defense of excuse, depending on the jurisdiction. 1The Model Penal Code provides, “Ignorance or mistake as to a matter of fact or law is a defense if: (a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or (b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense” (Model Penal Code § 2.04(1)).

Most states require that the mistake of law be founded on a statuteor judiciadecision that is later overturned. 2 The Model Penal Code states, “A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when…the actor…acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid…contained in…a statute or…judicial decision” (Model Penal Code § 2.04(3) (b)).

Incorrect advice from a licensed attorney cannotform the basis of a mistake of law defense. 3 Nor can mistake of law be rooted in ignorancothe labecause all individuals are required to know the criminal laws effective in their jurisdiction. The Model Penal Code provides, “A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise made available prior to the conduct” (Model Penal Code § 2.04(3) (a)).