Judicial Mistakes

Some states make a distinction between a mistake as to the substance and effect of
existing laws, and a mistake that the law creates a specific right to act in the particular
way. For example, if A, the owner of a vehicle, takes it into a garage for repair and when
returning to collect it, A finds that the vehicle has been left parked in the street. If he has
an honest belief that he has the right as an owner to retake possession of the vehicle
without paying the outstanding bill for the repairs, he will not be considered as stealing it
despite the fact that the garage holds a lien over the vehicle and so has the better right
to possession until the bill is paid. This form of the defense is difficult to prove because
the defendant must be able to prove that he believed in something more positive than
the law permitted the particular behavior. The belief must be that the law creates and
vests a specific right to act in that way. Under the Theft Act 1968 and the Criminal
Damage Act 1971, a defense will arise if the defendant honestly believes that he is
entitled to act in the way he did and this will negate the relevant mens rea element (e.g.
of dishonesty under §2 Theft Act 1968). In Chamberlain v Lindon, 1998 Lindon
demolished a wall to protect a right-of-way, despite allowing nine months to pass before
acting, Lindon honestly believed that it was immediately necessary to protect his legal
rights without having to resort to civil litigation. For the purposes of §5(2):
it is not necessary to decide whether Lindon’s action was justified as a matter of civil law.
For the purpose of the criminal law, what matters is whether Lindon believed that his
actions were reasonable, i.e. a subjective test.
Thus a lawful excuse may be acknowledged by a court to arise when a person honestly
but mistakenly believes that the actions are necessary and reasonable.
Mistake of Non-Governing Law In The United States
One narrow area of exception occurs where a person makes a mistake of nongoverning
law. While the accused are not pardoned for failure to know what acts have
been deemed criminal, they may not be held to know of non-criminal provisions that
affect the status of things that might therefore be deemed criminal. For example,
suppose Jennifer is married to Phillip, but decides to get a divorce in order to marry
Ben. However, Jennifer mistakenly believes that the divorce was final when she
submitted the paperwork required by the state, and did not realize that she had to wait
for a court to pronounce her divorced. In the interim, she marries Ben, and so is
technically committing bigamy because she has married a second man before her
divorce from the first was complete. Jennifer's mistake was not one of governing law
(she did not mistakenly believe it was legal to be married to two people), but rather a
mistake of non-governing law, which is akin to a mistake of fact. Depending on the
jurisdiction in which the act took place, Jennifer may be allowed to raise the defense of
mistake of law in such a scenario. See Long v. State, 44 Del. 262.
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