Taking Mistakes Seriously

Part I of this article discusses the principle that mistake or ignorance of the law is no excuse. It is settled law that no one can defend against a criminal charge on the grounds that he did not intend to flout the law and, at worst, made only a reasonable, honest mistake as to what he was free to do. Part II examines several areas in which the law does precisely the opposite by repeatedly manifesting a willingness to forgive reasonable mistakes by one or more actors in the criminal justice system. Part III then asks whether the developments discussed in Part II justify reconsidering the doctrine set forth in Part I that a mistake of law should not serve as an excuse to a crime. As I explain there, the Supreme Court’s recent and oft-stated rationale for its willingness to forgive mistakes made by actors in the criminal justice system militates strongly in favor of allowing private parties to assert a mistake-of-law defense. If the law is willing to countenance reasonable mistakes that government officials make, it also should be willing to forgive the reasonable mistakes that the rest of us make. And if that is true, then it is time to re-examine the hoary mistake-of-law doctrine