AN ACT TO EXPAND THE CONTOURS AND APPLICABILITY OF THE AFFIRMATIVE DEFENSE OF “MISTAKE OF LAW” IN CRIMINAL CASES

Summary

This model policy seeks to expand, in a subset of criminal cases (specifically those not involving violent, drug, or property offenses), the applicability of a “mistake of law” defense beyond its current contours, which, in most states, requires a defendant to establish reliance on an official interpretation of the law by a prosecutor, a subsequently overruled judicial opinion, or the fact that the law in question had not yet been published.

AN ACT TO EXPAND THE CONTOURS AND APPLICABILITY OF THE AFFIRMATIVE DEFENSE OF “MISTAKE OF LAW” IN CRIMINAL CASES

Summary: This model policy seeks to expand, in a subset of criminal cases (specifically those not involving violent, drug, or property offenses), the applicability of a “mistake of law” defense beyond its current contours, which, in most states, requires a defendant to establish reliance on an official interpretation of the law by a prosecutor, a subsequently overruled judicial opinion, or the fact that the law in question had not yet been published.

SEC. 1 | “MISTAKE OF LAW” DEFINED
“Mistake of Law” is an affirmative defense that, if proven by a preponderance of the evidence, negates the criminal-intent element of a specific-intent crime.

SEC. 2 | ELEMENTS OF THE DEFENSE
The mistake-of-law defense is a cognizable defense when all of the following elements are established:

1. charges are brought in criminal court;

2. the statutory or regulatory offense(s) in question are not strict-liability offenses, and the state is required to establish criminal intent beyond that to merely perform the act or omission constituting the offense;

3. the defendant erroneously concluded in good faith that his particular conduct is not subject to the operation of criminal law;

4. the defendant made a bona fide, diligent effort, adopting a course and resorting to sources and means at least as appropriate as any afforded under our legal system, to ascertain and abide by the law; and

A. In cases in which the conduct constituting the offense(s) is not characterized by the manufacture, sale, possession, or distribution of narcotics or any controlled substance, and is neither violent nor destructive of property, appropriate means are not limited to reliance on official interpretations or judicial decisions, consultation with a licensed attorney, and, where the offense alleged was committed in a business setting, seeking the advice of internal compliance professionals;

B. In cases in which the conduct constituting the offense(s) is not characterized by the manufacture, sale, possession, or distribution of narcotics or any controlled substance, and is neither violent nor destructive of property, enactment and publication of a law or regulation shall not be deemed to negate a mistake of law defense as a matter of law;

5. the defendant acts in good-faith reliance upon the results of such effort.