Mistakes

By: Gabriel Rise
Submitted: 2007-01-17 16:26:59
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The most difficult problems in criminal theory are generated by dissonance between reality and belief, between the objective facts and the actor's subjective impression of the facts. We explored the implications of the facts being innocent, but the actor's beliefs being criminal. Now we turn to the vast set of problems connected with the facts being incriminating, but the actor's beliefs, innocent. This is the general problem of mistake and ignorance about conduct that nominally violates a legal prohibition. If the actor knows of the circumstances in these cases, he surely would be liable for his conduct; but if he does not know, we confront the general theoretical question about the extent to which his ignorance provides an excuse for his legal violation. Our discussion will begin by categorizing the various types of mistakes that might arise in criminal proceedings; we shall then consider three postures toward mistakes and their implications, and finally we shall assess strategies and arguments both for acknowledging the exculpatory effect of mistakes and for denying that effect.

The literature of the common law, along with that of other legal systems, has long tended to divide mistakes into two categories: mistakes of fact and mistakes of law. Our hope will be to show that this form of classification is insensitive to the wide variety of mistakes that can arise in criminal cases. As we shall see in the following schema of mistakes, questions of fact and law arise, recede and interweave at every turn. The structural position of the mistake proves to be as significant as whether the mistake is one of law or fact. More important even than this refinement of mistakes of fact and law into three categories instead of two is the recognition that the object of the mistake might influence the analysis of liability. The claim is that it should matter whether the mistake is about an element of the definition, a claim of justification, a claim of excuse or the creation of risk.

These four categories intersect with the three types of mistakes and generate twelve of the fourteen problematic cases. The point of this chapter is to show that each of these categories raises special problems of analysis. why mistakes must sometimes be reasonable and sometimes not - is readily resolved if the mistake negates the intent required for the offense. If we are given an authoritatively defined intent and a mistake negates that intent, then the outcome is straightforward. This is what we shall call a "formal" approach to the problem, for it presupposes an unquestioned starting point - the authoritatively defined intent. The alternative, substantive approach to the problem, seeks to get behind the stipulated intent and assess how the intent ought to be defined; the pursuit of that definition, of course, is equivalent to asking which mistakes ought categorically to preclude conviction.

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