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Mistake of Fact

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Mistake of Fact:
A criminal defense that attempts to limit criminal liability on the ground that the defendant operated based on an incorrect assumption of fact rather than a criminal purpose.

Like voluntary intoxication, mistake of fact is not, in and of itself, a defense to a criminal charge. However, a mistake of fact can insulate a defendant from a criminal charge if it serves to negate the required mens rea of a crime.

Typically, the mistake that the defendant made must be a reasonable one. In other words, in order to be able to use mistake of fact as a defense at all, the mistake that the defendant made must have been one that an ordinary person would have made under the circumstances. However, some jurisdictions do not require the mistake to have been reasonable if the defendant is using it to negate the intent element of a specific intent crime.

The Model Penal Code holds that a mistake does not need to be reasonable, regardless of the crime that the defendant is charged with, so long as the mistake eliminated the defendant’s intent to commit the crime. However, the Model Penal Code also holds that if the defendant made a mistake of fact, but that his act would have been a crime even had the facts been as he thought they were, the defendant can still be convicted. For example:

EXAMPLE (1): Fred is a sugar salesman. Fred has hundreds of bags of sugar in his store. Each bag weighs one pound, and Fred sells his sugar in one pound units. Fred never opens up the bags themselves. He merely unpacks them when they are delivered, puts them on display, and sells them as they are when customers order them. One of Fred’s sugar suppliers also happens to be a cocaine dealer and he accidentally puts a one pound bag of cocaine into a crate of sugar that he ships to Fred. Barney comes into Fred’s store and orders one pound of sugar. Fred pulls a bag off of his shelf and gives it to Barney. Fred thinks he is selling Barney sugar but, unfortunately, Fred has just handed Barney the one pound bag of cocaine. In this situation, Fred has made a reasonable mistake of fact. He reasonably thought he was selling Barney a bag of sugar when, in fact, he was selling him a bag of cocaine. Since Fred’s mistake is of the nature so that he had no intention of selling drugs to Barney, Fred cannot be convicted of a crime.

EXAMPLE (2): Fred is a narcotics salesman who sells heroin and cocaine. Barney comes into Fred’s store and asks for a bag of cocaine. Fred reaches for a bag and hands it to Barney. Both Barney and Fred think that the bag is filled with cocaine, but the bag is actually filled with heroin. In this case, Fred can be convicted for selling heroin. Even though he made a reasonable mistake of fact in that he did not know the bag was filled with heroin, he can still be convicted under the Model Penal Code, because even had the facts been as he thought them to be, his actions still would have been illegal.

Since mistake of fact is used to demonstrate that the defendant did not have the requisite intent to commit the crime he is charged with, the general rule is that mistake of fact is not available as a defense against strict liability crimes where no intent is required in the commission of the crime. See People v. Vogel, 46 Cal. 2d 798 (1956). For example:

After several years of marriage, Fred and Wilma file for divorce. Unfortunately because of a mistake that Fred’s attorney makes, the divorce is not technically legal and Fred is still legally married to Wilma. The attorney, afraid that Fred might sue him for malpractice, does not tell Fred of the mistake, and Fred thinks that he is legally divorced from Wilma. Two years later Fred marries Betty. Fred is arrested and charged with the crime of bigamy. According to the general rule, since bigamy is a strict liability crime, Fred will not be able to use reasonable mistake as a defense since no intent is required to commit a strict liability crime.

Since mistake of fact is a defense that puts the defendant’s intent when he committed the crime at issue and intent is an element of the crime that the prosecution must prove, if the defendant brings up the defense of mistake of fact, the burden of proof is on the prosecution to prove, beyond a reasonable doubt, that the defendant did in fact have the requisite intent to commit the crime. If the prosecution cannot do that, the defendant must be acquitted. See Wilson v. Tard, 593 F. Supp. 1091 (D.N.J. 1984).