As a general rule, ignorance of the law or mistake of fact does not constitute a defense to crimes not requiring specific intent. This rule is the result of practical considerations dictated by the deterrent effect upon the administration of justice and law enforcement which are deemed likely to result if ignorance could be asserted as a general defense. If allowed, such a defense could lead to constant jury confusion and would tend to encourage ignorance at a point where it is particularly important to the State that the knowledge be as widespread as is reasonably possible.62
A. Ignorance or Mistake of Fact.
Ignorance or mistake of fact is a valid defense, however, if (i) the ignorance or mistake negatives the state of mind necessary for the commission of the offense; (ii) a statute defining the offense or a related statute expressly provides that the ignorance or mistake constitutes a defense; or (iii) the ignorance or mistake is of a kind, that supports a defense of justification.63 In such circumstances, the defendant is to be judged by his or her own subjective culpability. If the defendant believed that a certain set of facts existed which would make the activity lawful, the defendant should not be criminally liable unless the crime is one which does not require intent or one of criminal negligence. In the latter case, the defense would be inapplicable only when the defendant was criminally negligent in not being properly informed about the state of facts.64
To establish the defense, it must be shown that (i) the defendant erroneously concluded in good faith that the particular conduct was not subject to the operation of the criminal law, (ii) the defendant made a bona fide, diligent effort to ascertain and abide by the law, adopting a course and resorting to sources at least as appropriate as afforded by or under our legal system, and (iii) the conduct constituting the offense was neither immoral nor anti-social.64.1
The defendant’s mistake must have an effect on criminal liability before it can be applied. If the defendant would still have committed the crime even if the facts were as the defendant thought them to be, ignorance or mistake would not constitute a defense.65
B. Ignorance or Mistake of Law.
Ignorance of the law is not a defense to a crime.65.1 Mistake of law is not provided for in the Delaware Criminal Code, but is recognized at common law.65.2 To establish this defense, the defendant must (i) be aware of the existence of criminal law relating to the subject of such conduct, (ii) erroneously conclude in good faith that his particular conduct is for some reason not subject to the operation of any criminal law, (iii) make a bona fide, diligent effort, adopting a course and resorting to sources and means at least as appropriate as any afforded under our legal system, to ascertain and abide by the law before engaging in the conduct, and (iv) rely in good faith upon the results of such effort. 65.3 The defense is be determined according to objective standards, and not the defendant’s subjective state of mind.65.4
62. State v. Deedon, 189 A.2d 660, 661 (Del. 1963); Long v. State, 65 A.2d 489, 497 (Del. 1949).
63. 11 Del. C. § 441.
64. 11 Del. C. § 441, commentary.
64.1. Kipp v. State, 704 A.2d 839, 842 (Del. 1998); Long v. State, 65 A.2d 489, 497-78 (Del. 1949).
65. 11 Del. C. § 441, commentary.
65.1. Wien v. State, 882 A.2d 183, 190 (Del. 2004); Kipp v. State, 704 A.2d 839, 842 (Del. 1998)
65.2. Bryson v. State, 840 A.2d 631, 635 (Del. 2003); Kipp v. State, 704 A.2d 839, 842 (Del. 1998).
65.3. Kipp v. State, 704 A.2d 839, 842 (Del. 1998); Long v. State, 65 A.2d 489, 498-99 (Del. 1949).
65.4. Bryson v. State, 840 A.2d 631, 635 (Del. 2003); Long v. State, 65 A.2d 489, 498 (Del. 1949).
© 2010 David L. Finger