Mistake

Ignorance of the Law

We can distinguish between a defendant who does not know that a particular act is even arguably criminal and a defendant who knows that there is a law generally applying to his area of activity, but believes that the law does not cover his particular act. The first is ignorance of the law; the second, mistake.

The few reported decisions of ignorance of the law usually involve aliens to a particular culture [5]and epitomize the injunction, “When in Rome (or at least a common law country) do as the Romans do.” Thus, in In the Matter of Etienne Barronet and Edmund Allain, 118 Eng. Rep. 337 (1852), the defendants, Frenchmen who had taken political asylum in England, acted as seconds in a duel fought on English soil. Dueling was not merely legal in France; participation was a “matter of honor.” The defendants were unaware that dueling was illegal in England. The court declared their ignorance of the law to be irrelevant.

This rigor is still in force. In United States v. Moncini, 882 F.2d 401 (9th Cir. 1989), the defendant, who lived in Italy and who was interested in pornographic pictures, was contacted by an undercover FBI agent in the United States and induced (but not entrapped) to send such pictures to the agent. When the defendant arrived in the United States for unrelated business, he was arrested and charged with “using the mails to send child pornography.” He contended that since dissemination of such materials was not a crime in Italy, he should be excused in the United States as well. The court rejected his claim of ignorance of the law.[6]

A more recent opinion of the United States Supreme Court may suggest a slight movement away from this doctrine, at least in interpretation of federal statutes. In Ratzlaf v. United States, 510 U.S. 135 (1994), the defendant owed a gambling casino in Reno, Nevada, over $100,000. When he tried to pay off most of this debt in cash, he was informed that if he paid $10,000 or more in one lump sum, the casino would have to report this to the United States government under anti-money-laundering statutes. For reasons known only to Ratzlaf, he did not wish the government to know of his transactions. The casino thereupon drove him (in a limousine) to a number of banks in the town, at each of which he could obtain a cashier’s check for an amount under $10,000, in which case neither the casino nor the bank would have a duty to report the transaction. Ratzlaf agreed that he had willfully structured his transactions so as to avoid reporting, but argued that he did not know that this was illegal. The trial judge instructed the jury that this ignorance was irrelevant, as long as Ratzlaf in fact “willfully structured” the transaction. The Supreme Court reversed, holding that his ignorance of the legal duty not to structure the transaction made his act “nonwillful” under the statute.[7]

[5] Star Trek fans will recall that in both the original series and in The Next Generation the issue of ignorance is raised. In Star Trek, a crew member, while visiting a planet for recreation, picks a flower; this turns out to be a capital offense in that culture, and he is accordingly tried for that crime. In Next Generation, Wesley Crusher inadvertently enters an area that, under the law of the planet, is forbidden. He too is tried capitally. In both episodes, the Captain (Kirk or Picard) persuades the rulers that the doctrine is too harsh. Fortunately for the crewmen, they never landed in a jurisdiction governed by the common law.

[6] The court did note that even in Italy the kinds of photographs involved, while not illegal, were regulated, thereby putting the defendant on notice to inquire about the laws of other jurisdictions to which he might send such pictures. Although not critical to its holding, the court’s position could be read as portraying the defendant as reckless and hence morally blameworthy in this regard.

[7] One other ignorance case should be mentioned here. In Lambert v. California, 355 U.S. 255 (1957), the Court held that constitutional due process was denied a defendant who was precluded from introducing evidence that she was unaware of a city ordinance requiring her, as an ex-felon, to register her presence with the city. Some commentators thought that the decision would lead to a series of constitutional challenges to the entire “ignorantia lex” rule, but it has been restricted to cases involving (a) ignorance of (b) a local ordinance (c) imposing a duty to act (in contrast to imposing a prohibition against acting). It has become, as Mr. Justice Frankfurter predicted in his dissent in the case, a “derelict upon the waters of the law.” For a broad attempt to resurrect Lambert, see the dissenting opinion of Judge Bennett in United States v. Hutzell, 217 F.3d 966 (8th Cir. 2000).

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