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Mistake of Law

In many cases, defendants “rely” on their own “understanding” of the law, informed by either “general custom” or a “hunch,” although in some rare instances defendants will attempt to find and read the applicable criminal statute. Far more common are cases where a defendant suspects that his activity may be subject to government, even criminal, regulation, but concludes, as the result of advice that he has sought, that his actions are not criminal. In all of these cases the defendant has sought to discover what the law is, as Holmes hoped. Yet in virtually none is he exculpated. For example, a minister charged with erecting in his front lawn a sign declaring that he performed marriages was precluded from presenting evidence that he relied on advice from a county attorney that the sign was acceptable. State v. Hopkins, 193 Md. 489 (1959). Similarly, a restauranteur who relied on the judgment of a municipal court (given in another proceeding) that the device he was installing was not a “gambling device” within the meaning of the criminal law was held liable for his mistake of law. State v. Striggles, 202 Iowa 1318 (1926). And a fisherman was precluded from introducing evidence that he had obtained advice from both an attorney and a commissioner of fishing licenses that his method of fishing for smelts was not illegal. State v. Huff, 89 Me. 521 (1897).

Reliance on a lawyer’s advice was never an acceptable defense under the common law. In Staley v. State, 89 Neb. 701 (1911), the defendant and his cousin, both of whom lived in Nebraska, wanted to marry but knew that their marriage would be illegal under Nebraska law. They then were married in Iowa, which did not prohibit marriages between cousins. When they returned to Nebraska, the county prosecutor told the defendant that he would be prosecuted for fornication if he continued living with his cousin. The defendant then went to three attorneys, each of whom informed him that the Iowa marriage was indeed not valid in Nebraska. Consequently, the defendant left his cousin. A year later, he married another woman in Nebraska and was then prosecuted for bigamy. It turned out that the Iowa marriage was valid in Nebraska, and that he was therefore still married to his cousin when he “remarried.” On the basis of “ignorantia lex,” the defendant was precluded from presenting any evidence of the legal advice given him by the three lawyers or by the county prosecutor concerning the (in)validity of his marriage to his cousin.

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