Email Rebuttal   Re.: Quiz #2, Chapters 6-7

Course: Criminal Law      Thursday Evening

Instructor: Dwayne Wierzba

September 11, 2008

To: Michael Bessette

Submitted By: Jeffrey Thomas

Dear Mr. Bessette,

Thank you for the opportunity to present my case.  I am writing to rebut the answer to the following question:

10. The general rule is that ignorance of law is…

The correct answer is “A. Not a defense.”

My answer is “B. A defense only if it negates the mens rea.”

Our Criminal Law text offers this definition on page 132,            

Mistake of Law: A claim by a defendant that the defendant did not know the action taken violated the criminal law.

The section of Mistake or Ignorance of Criminal Law is introduced with Blacksone’s tweaking of a Latin phrase in his Commentaries (4 Commentaries, 27).  The original Latin maxim “Ignorantia legis neminem excusat (“Ignorance of the law excuses no one”)” is reworded “Ignorance of the law which everyone is bound to know, excuses no man.” (emphasis mine)

The text explains that, although for more serious offenses such as murder, rape, robbery and theft, or for strict liability crimes such as traffic violations, a court typically will not permit a defendant to claim ignorance of law.  But the text goes on to explain “Sometimes what appears to be a mistake of law may nonetheless provide a defense.”  To illustrate, the case Lambert v. California is offered (p132).  In this case the defendant, a resident of Los Angeles who had seven years earlier been convicted of forgery,  was charged with and convicted of failing to register  with local authorities as required of “any convicted person” under Los Angeles municipal ordinance.  The U.S. Supreme Court later held that the registration provision of the ordinance violated the due process requirement of the Fourteenth Amendment: 

…Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process.  Were it otherwise, the evil would be as great as it is when the law is written too fine or in a language foreign to the community.    Supreme Court of the United States (1957) 355 U.S. 225, 78 S.Ct. 240

The highest court felt so strongly about this defense of ignorance that they likened it to “evil” and law written in a foreign language or with impossible to understand verbiage.

Finally, Wisconsin Statute 939.43 (1) discusses the mistake defense.

An honest error, whether of fact or of law other than criminal law, is a defense if it negatives the existence of a state of mind essential to the crime. (emphasis mine)

As you can see, when mens rea is absent, the defense is allowed.  The text made a specific point to highlight Blacksone’s differentiation between the inexcusable nature of ignorance of all law versus ignorance of only the laws everyone is bound to know.  Further, the Supreme Court demonstrated this in the Lambert decision.  I am not suggesting that answer “A” is incorrect.  In my opinion, answer “B” is an equally valid and alternative answer to “A.”

Once again, thank you so much for your time and consideration.  I look forward to any feedback you may have to offer.

Sincerely,

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