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Ross Goodman | goodmanlawgroup

Ignorance or Mistake as a defense

Mar 7th 2014 at 1:32 AM

The defendant can claim that they made a mistake or was unaware of a certain fact, and thus could not be held liable for a crime, but how does it work?

Mens rea - The mental state of crime

The defense works because of the lack of mens rea. Mens rea is defined by criminal law as the presence of mind and awareness required to perform a guilty act, and to that extent, to commit crime. A person simply cannot be held liable if they did not were not meaning to commit crime in the first place, although it has exceptions.

Examples where claiming ignorance or mistake may work

Let’s take a look at some examples when crime lacks mens rea:

· Assaulting an officer, but the defendant was unaware that the person they were assaulting is an officer.

· A police officer noticing someone taking more than what they paid for, like in a supermarket for instance. They may be charged with larceny even if they genuinely did not know that they took something extra. Possibly, they or the cashier was the one who made a mistake.

· An adult might not realize that the person they were sexually involved in was is still a teenager. They were charged with sexual assault as a result.

· Killing someone with a gun, which the defendant believes was unloaded. They may not be held liable for first-degree murder because it requires an intake to kill. Even if the defense was successful, the defendant may still face charges for a lesser crime, like second-degree murder or negligence discharge of a firearm.

· The defendant may not realize that their actions or an item is illegal. For example, believing that a certain state have passed a law legalizing marijuana, when in fact it has not.

Proving ignorance or mistake

Your criminal defense lawyer will be able to inform you if you using ignorance or mistake as a defense can get your case the best results. However, using this as a defense means the defendant must prove their ignorance or mistake. Their claim must also be realistic or possible, else the defense cannot be used.

Moreover, most states will not regard mistake of fact as a valid defense because it can allow the defendant to claim ignorance of the law. It also cannot be applied (barring exceptional circumstances) as a defense for negligence or crimes of strict liability. The reasoning behind this is because this defense goes against the legal principle of holding everyone accountable, even if they were ignorant of the law.


You can contact Ross by calling (702) 383 – 5088. If you need more info about Ross, you can read his Avvo profile.

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