§ 13.02 WHEN MISTAKE-OF-LAW IS A DEFENSE: EXCEPTIONS TO THE GENERAL RULE

• Jurisdiction: United States

§ 13.02. When Mistake-of-Law Is a Defense: Exceptions to the General Rule

[A] Putting the Exceptions in Context

Although the no-defense rule stated in Section 13.01 is strict, there are three exceptions to the general rule. The first basis for acquittal is sometimes known as the "reasonable reliance" or "entrapment by estoppel" exception. As discussed below, this defense deals with the situation in which the government provides legal misinformation to the defendant. Because of the defendant's reliance on the misinformation, the defendant is excused for violation of the offense. Although this exception has its roots in the common law, a few courts frame this defense on constitutional grounds.

The second basis for acquittal expressly has its roots in the United State Supreme Court's constitutional ruling in Lambert v. California.²³ Here, the basis for acquittal is not misinformation provided by a government official, but rather something about the nature of the criminal statute itself that prevents a citizen from receiving fair notice of the existence of the statute. Thus, the basis of this defense is not mistake of law, but ignorance of law.

The third exception is a so-called "failure-of-proof" claim.²⁴ Essentially, here, the defendant claims that, because of a mistake of law (almost always it is a mistake regarding a law other than the one for which she is being prosecuted), she did not have the requisite mens rea to be convicted of the offense charged. To the extent that this type of claim is exculpatory, it is a defense for the same reason a mistake-of-fact claim acquits: the government has failed to satisfy its burden of proof regarding an essential element of the offense.

These three exceptions are explained below.

[B] Reasonable-Reliance Doctrine (Entrapment by Estoppel)²⁵

Under limited circumstances, a person may rely on an interpretation of the law later determined to be erroneous. We start, however, with two situations in which such reliance is not permitted.

[1] No Defense: Reliance on One's Own Interpretation of the Law

A person is not excused for committing a crime if she relies on her own erroneous reading of the law, even if a reasonable person—even a reasonable law-trained person—would have similarly misunderstood the law. For example, in People v. Marrero,²⁶ M, a federal corrections officer, was arrested for possession of a loaded .38 caliber automatic pistol, in violation of a statute that prohibited the carrying of a handgun without a permit. M sought dismissal of his indictment on the ground that the law expressly exempted peace officers from liability under the statute. The statutory definition of "peace officers" included any official or guard of "any state prison or of any penal correctional institution." Because he was a federal corrections officer, M said that he believed that he was exempt under the law.

M's reading of the statute was not self-evidently unreasonable. Indeed, the trial judge agreed with M's reading of the law. Nonetheless, an appellate court concluded, by a 3-2 vote, that he was not a "peace officer" within the meaning of the statute. Although this means that three of the six judges who considered the exemption interpreted it as M did, M was not entitled to claim mistake-of-law at his subsequent trial to the extent that his mistake was founded solely on his own understanding of the law. In such circumstances, the ordinary no-defense rule applies: One is never excused for relying on a personal—even reasonable—misreading of a statute.

[2] No Defense: Advice of Private Counsel²⁷

Reliance on erroneous advice provided by a private attorney is also not a defense to a crime.²⁸ This blanket rejection of a defense is controversial. Society arguably is better off if a person acts on the basis of a lawyer's advice than if she acts on her own untutored reading of the applicable law. A rule that encourages a citizen to seek a lawyer's assistance would likely promote, rather than discourage, knowledge of the law.

Occasionally it is suggested that if reliance on private legal advice could excuse a person's unlawful conduct, she might purposely turn to an unethical lawyer or one of questionable competency in order to obtain advice that authorizes the improper con-duct.²⁹ However, this argument exaggerates the dangers in permitting an excuse. Unqualified lawyers exist, but courts presume that attorneys are competent, absent evidence to the contrary.³⁰ Nor is the risk of fraud substantial: An attorney is subject to professional discipline or criminal prosecution for fraudulent conduct.³¹

Probably the most serious problem with permitting the defense in these circumstances is one of line-drawing. Should the advice of any lawyer qualify, or only advice from a specialist in the field? Must a person turn to an experienced lawyer, or may she turn to a new member of the Bar? Ultimately, however, any reliance that would result in exculpation would have to be reasonable. A jury could determine whether the defendant made reasonable efforts to obtain accurate legal advice. Nonetheless, no such defense is recognized.

[3] Defense: Faulty Interpretation of the Law by the Government

There is no agreed-upon way of describing the required elements of the "reasonable reliance" or "entrapment by estoppel" exception to the no-defense rule. Although a person is not excused for relying on her own interpretation of a criminal statute or that of a private attorney, one court has stated that the defense applies "when an official assures a defendant that certain conduct is legal, and the defendant reasonably relies on that advice and continues or initiates the conduct."³² Another court has stated that the defense applies if a government official "misleads a party as to the state of the law and that party proceeds to act on the misrepresentation," as long as the defendant's reliance is reasonable "in light of the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation."³³ Other courts have described the defense in a manner similar to the Model Penal Code.³⁴ Some courts characterize this defense as finding its source not merely in general common law principles, but also in principles of constitutional due process.³⁵ The defense, when applicable, applies to general-intent as well as specific-intent offenses.³⁶

This defense may be justified on various grounds. First, the threat of punishment can have little deterrent effect on an individual whose conduct has been authorized by an appropriate party or legal body. Second, a person who acts on the basis of an official, albeit erroneous, interpretation of the law has acted as we would want her to act, i.e., in obedience of the law as it was explained to her by a proper party. Third, there is a "clean hands" justification for the rule: It is fundamentally unfair for a government agent to authorize conduct and then seek to have the individual who relied on that authorization prosecuted, even if it later turns out that the original authorization was incorrect.

This defense is narrowly applied. In general, a person may only reasonably rely on a statement of the law contained in: (1) a statute later declared to be invalid;³⁷ (2) a judicial decision of the highest (and perhaps a lower-level) court in the jurisdiction, later determined to be erroneous;³⁸ or (3) an erroneous interpretation of the law, secured from a public officer in charge of its interpretation, administration, or enforcement, such as the Attorney General of the state³⁹ or, in the case of federal law, of the United States.

According to these narrow principles, D1, an ex-felon in possession of a muzzle-loading hunting rifle, who is charged with "possession of a firearm by a person previously convicted of a felony" may defend her actions if she was assured by her probation officer than she could possess the weapon, but she cannot rely on assurances of a state Department of Game and Fisheries official who lacked authority to interpret the penal law in question.⁴⁰ For the same reason, D2, a motorist charged with disobeying a lawful police order, cannot rely on a 911 telephone operator's advice received by D2 on a car phone to ignore a police officer's order to pull over in her car.⁴¹

Even if a person obtains an interpretation of the law from a proper source, one should look at the context in which the misinformation was given. For example, a person may rely on an official "opinion letter" from the state Attorney General, formally interpreting the statute in question.⁴² However, a highly informal interpretation of the law will typically not do. For example, a fisherman may not reasonably rely on an extemporaneous interpretation...