42 Tex. Tech L. Rev. 359 (2009-2010)
When Should a Mistake of Fact Excuse

handle is hein.journals/text42 and id is 363 raw text is: WHEN SHOULD A MISTAKE OF FACT EXCUSE?
Stephen P. Garvey*
I.   INTRODUCTION     .................................................................................. 359
H1.  WHEN SHOULD A MISTAKE OF FACT EXCUSE? ................................. 360
A.    From Mistake of Fact to Ignorance of Law ............................. 364
B.    From Mistake of Fact to Ignorance of Some Law .................... 369
III. SHOULD AN UNREASONABLE MISTAKE OF FACT LOSE ITS
EXCULPATORY      FORCE? ..................................................................... 372
A.    Mistake of Fact and Mentes Reae ............................................ 373
B.    Responsibility for Unreasonable Beliefs .................................. 375
1.  C hoice  ................................................................................ 377
2.  O rthodoxy  .......................................................................... 378
3.  Indiff erence ........................................................................ 380
IV .  C ONCLUSION   ..................................................................................... 382
I. INTRODUCTION
When should a mistake of fact excuse an otherwise criminal act? Some
might say that the question betrays confusion or anachronism. Confusion,
because mistakes of fact are not excuses. They are so-called failure of proof
defenses. Anachronism, because thinking about mistakes of fact as excuses
harkens back to an older understanding of the guilty mind as mens rea, whereas
modem thinking has replaced mens rea with mentes reae. But the question
does make sense, and the older way of thinking about the guilty mind has its
virtues.
Here I advance two claims. First, a mistake (or ignorance) of fact should
matter only insofar as it causes an actor to be ignorant of the law. Mistakes of
fact should have exculpatory force if and only if they cause ignorance of the
law, and ignorance of the law ought to be an excuse to criminal liability.
Second, an actor who should otherwise be excused because he is ignorant of the
law, where that ignorance is the result of some mistake of fact, should not lose
that excuse just because the underlying mistake of fact can, in a plausible and
legitimate sense, be characterized as unreasonable.
* Professor of Law & Associate Dean for Academic Affairs, Cornell Law School. I presented this
paper at the 2009 Criminal Law Symposium, Excuses and the Criminal Law, held at Texas Tech University
School of Law on April 3, 2009. 1 would like to thank the editors of the Texas Tech Law Review for all their
hard work, Professor Arnold Loewy for inviting me to participate, and the conference participants for their
helpful comments. Thanks also to John Blume, Sherry Colb, and Jens Ohlin for their thoughts on an earlier
draft.

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