Mistake (criminal law)

Unlike mistake of law which is not usually a defense, mistake of fact may sometimes offer exculpation (see excuse), by allowing a criminal defendant some relief from liability for having broken the law.

Discussion

Most criminal law systems in developed states exclude mistake of law as a defense, because allowing defendants to invoke their own ignorance of the law would breach the public policy represented by the Latin maxim: ignorantia juris non excusat. But mistake of fact is sometimes allowed as valid defense because, although the defendant has committed the actus reus of the offense, the defendant may honestly believe in a set of facts that would prevent him or her from forming the requisite mens rea required to constitute the crime.

For example, if a defendant goes into a supermarket and places eight items in a basket which is presented to the cashier for payment in the usual way. Both honestly believe that all eight items have been scanned, and the defendant pays the sum shown on the bill. A store detective, however, notices that a mistake was made by the cashier so that only seven items were actually priced. This detective arrests the defendant after leaving the store. Since the defendant honestly believes that he has become the owner of goods in a sale transaction, he cannot form the mens rea for theft (which is usually dishonesty) when he physically removes them from the store. Accordingly, he should be acquitted.

But, if A was in transit through an airport and picked up a bag which looked like his own, and that bag was to contain a bomb, A might attempt to argue that a mistake prevented him from being in possession of the bomb. In fact, this argument would fail because the defendant had the legal right to open, examine, and verify the contents of the bag. If he or she neglected to do so, then he or she was reckless as to the nature of the contents and therefore in possession of them. Only persons such as postal workers or other carriers who have no right to open the boxes and bags that they carry, can claim that they are not in possession of the contents. The same fate would befall defendants who tried to argue that they took another person's coat from a coat rack when they intended to take their own and so were not in possession of the prohibited drugs found in one of the pockets. In neither of these cases does the mistake prevent the defendants from forming the requisite mens rea to possess the contents. Such defendant intend to possess the contents, no matter what those contents may later prove to be.

Honestly held but unreasonable beliefs

For a leading Supreme Court of Canada case on the mistaken belief defence see: R. v. Park in which it was held that even unreasonable beliefs must be left to a jury to consider. The issue in most states is the extent to which the test of belief should be subjective or objective. There are people who actually believe some things to be true when no reasonable person would have that belief. There may be medically verifiable reasons for this distortion in the belief system and, if some form of mental disorder is proved to be the operating cause, some states might allow a defense on that ground. But, if there are no credible explanations for the belief held, the question then becomes whether an unreasonable but honestly held belief should be allowed as a defense. If the test was only subjective and the accused had not actually formed the mens rea element, no crime would have been committed. But if the test, whether in whole or part, imputes knowledge and intention by reference to a reasonable person standard, the accused may be deemed wilfully blind to the obvious and denied the defense. This latter approach has the virtue of allowing the courts to operate as a protector of the public and, to some extent, of the accused. If the accused is not convicted, the court has no power to order counselling or other noncustodial intervention in less serious cases. Obviously, if the individual is a danger to himself or others, the socially desirable outcome is to deny the accused the benefit of the defense and to invoke the full range of sentencing powers. In English law, the Sexual Offences Act 2003 has introduced a hybrid test of reasonable belief as to consent. The defendant must now be seen to have taken steps to ascertain clearly whether the "victim" was consenting in all the circumstances. This abolishes the defence of a genuine though unreasonably mistaken belief as to the consent.

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Discussion

Honestly held but unreasonable beliefs

See also