You Made A Mistake & Charged With A Crime…You May Have A Defense!



mistake of fact - mistake of law - Kenney Legal Defense

“Mistakes – call them unexpected learning experiences.”
Richard Bach


There are certain situations where you may not be held liable for a crime that you have committed. Yes, you read that correctly, in some cases you can break the law and not be held responsible. These cases are few and far between but they do exist.

Mistake of Fact and Mistake of Law are two different possible avenues for a criminal defense attorney to take in order to help a client prove that they should not be held liable for a crime they committed. Mistake of Fact usually occurs when a person has a mistaken belief that the law, or a particular part of the law is something other than what it is and they act upon their mistaken belief. So if you have an honest mistake where you break a law, you may be able to use mistake of fact as a defense. Let say, for example, that you are charged with theft but you believed that the piece of jewelry was yours because you had the same exact one and you didn’t mean to take the victim’s jewelry away from them. This case could be one where your attorney could try to use mistake of fact as a defense because your key misunderstanding was that you believed that the jewelry that you took was yours and most importantly because you had a reasonable reason to believe that it was yours. If the case had been that you had been told multiple times from the victim that the piece of jewelry was not yours or if you did not have one just like it, this defense would be very difficult to pursue. Mistakes of facts can apply to many different crimes.

In California, the affirmative defense for Mistake of Fact against a specific intent crime is found in California Criminal Jury Instruction 3406 which states “The defendant is not guilty of the crime if he/ she did not have the intent or mental state required to commit the crime because he/she did not know a fact or mistakenly believed a fact. If the defendant’s conduct would have been lawful under the facts as he/she believed them to be, he/she did not commit the crime.”

Mistake of Law is another defense, but it is not used as commonly or as successfully. A Mistake of Law is not nearly as reliable an option because the responsibility to know the laws is placed upon the general population, so to do something illegal and claim that you did not know it was illegal does not work too well. There are, however, a few circumstances that this defense can be used in—if a law has not yet been passed, if you relied on a law that was then overturned or deemed unconstitutional, if you relied on a judicial decision that was then overturned or if you relied on an official’s interpretation of a law that was incorrect. You have to have a reasonable reliance on these facts though, meaning you can’t look up a law from 100 years ago and then claim that you didn’t know it had been changed or updated. You can rely on the word of a judge or members of a federal or state agency, but your lawyer is not covered under this defense. This means that you’ve got to be very selective when picking your attorney and when taking their advice.


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