Introduction and basic concepts

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VIII.Mistake of Law

    1. Generally, MPC supports this in only limited circumstances.

    2. § 2.04(3) belief that act is not an offense is a defense when:

(a) act has not been published (lack of notice)

(b) acts in reasonable reliance upon an official statement of law, afterward determined to be invalid in (i) statute, (ii) judicial decision, (ii) admin order, or (iv) official interpretation of public officer charged by law w/ interpretation, administration or offense

§2.04 (4) This defense must be proven by preponderance of evidence.

    1. Case:

      1. People v. Marrero:  arrested for carrying a loaded pistol in violation of NY statute. He claimed exception as a corrections officer (this was a misreading of the statute as it only exempted state corrections officers). The ’s personal misreading of the law is not a defense. This would lead to an infinite number of mistake of law defenses.

        1. the  always wants to argue a mistake of law (non-exculpatory)

        2. the  always wants to argue a mistake of fact (always exculpatory, goes to a jury to determine if the mistake was reasonable).

      2. U.S. v. Albertini -  was a protestor whose actions was ruled to be protected on 1st appeal, but not on 2nd appeal. Court held that he could not be punished for acts between 1st appeal and grant of cert for second appeal.

      1. Regina v. Smith – man thought property law made landlord’s property his own (he put in the flooring himself). Court of appeals acquits. Good nexus of law and fact.

      1. Hopkins v. State - Hopkins asked a prosecutor (State’s Attorney) if what he was doing (hanging a sign) was illegal. Trial Court held and MD SC affirmed that prosecutor is not an official interpreter of the law. Seems out of line.

    1. Cultural Defense Where I come from this is considered legal (or even praiseworthy) conduct.

      1. Can we say that if you want to move to a country you need to follow basic criminal law?

      2. How can we rebut this defense? Do we need to bring experts to confirm cultural trends and traditions? Who do we ask to confirm this? Older tribesmen? Younger? Are we in a position to figure out the legal norms for the rest of the world?

      3. This is a much debated defense. On the one hand, we seek to protect the least powerful (usually immigrants, etc.). On the other hand, there are victims rights issues as well as feminist issues (often cultural defense is employed in crimes against women.


    1. “no crime without law, no punishment without law.” Three elements:

      1. Criminal statutes should be understandable to reasonable law-abiding people

      2. Criminal statutes should be crafted so as not to delegate basic policy matters to police, judges, and juries for resolution on an ad hoc and subjective basis

      3. Judicial interpretation of ambiguous statues should be biased in favor of the accused

    2. MPC does not recognize the lenity principle

      1. see §1.02(3) ambiguity shall be interpreted to further the general purpose stated in this Section and the special purposes of the particular provision.

    3. In the real world it’s hard to know how much specificity we’ll require or how much vagueness we’ll allow.

      1. need to keep fairness but allow police to exercise peace keeping.

      2. The legislature can make anything a crime unless the prohibition would violate a constitutional right.

      3. Courts are much slower to hold that an ordinary criminal statute – one that does not touch on fundamental constitutional rights – is unconstitutionally vague (i.e. negligence is not easily definable, but statutes that use it are not automatically vague

      4. Consider drunk driving. Courts read many different standards into the law. Are you aware of your jurisdiciton’s standards?

    4. Cases:

      1. Shaw v. Directors of Public Prosecutions: (in the UK) Prostitutes couldn’t solicit on the street so  published a magazine advertising them (nude). The court held that this was a conspiracy to corrupt public morals. This was a bad holding, as there was really no such offense. This wouldn’t have happened in the US.

      2. Keeler v. Superior Court -  assaulted estranged wife and told her he was going to beat the baby out of her. His attack killed the fetus, and he was convicted of murdering the unborn child. Court acquitted, because there were no previous case to give  notice that a fetus would be a person. (political implications: abortion law).

      3. Chicago v. MoralesCourt overturns Chicago anti-loitering statute for vagueness. It gave too much discretion to the police by allowing them to dispurse any group of people hanging around with no apparent purpose as long as one was believed to be a gang member.

        1. MPC §250.6  loitering or prowling in a place, at a time, or in a manner not usually for law-abiding individuals under circumstances that warrant alarm for safety of person or property in vicinity.

          1. Causes for alarm include fleeing from peace officer, refusal to identify, attempt to conceal self or object

          2. Offender must be given opportunity to identify himself and explain his presence (necessary procedure for conviction).

        2. Political implications: race

Directory: sites -> default -> files -> upload documents
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upload documents -> Con law professor Larry Sager Fall 1995 I. U. S. Term limits V. Thornton
upload documents -> Property with Professor Vicki Been
upload documents -> Property Outline – Professor Upham, Spring 2000
upload documents -> Constitutional law outline part I: structure of government judicial review and constitutional interpretation
upload documents -> Complex federal investigations
upload documents -> Foundations: Agency Law Introduction to law of enterprise organizations
upload documents -> Pricing v. Sanctions

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