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What is a “Mistake of Law” Defense?

Posted in Criminal Defense on October 16, 2019

When a person has been charged with a crime, they will work to formulate a defense. They will often do so with the help of a criminal defense attorney. One common defense for a crime is that the defendant’s actions were a mistake of law. It is important to distinguish between a mistake of law and a mistake of fact, as they are two separate defenses. For both of these defenses, the person accused of the crime will argue that they never intended to commit the crime they have been accused of. Mistakes of fact are more commonly applied in criminal defense cases than mistakes of law.

What is “Mistake of law”

A mistake of law is a defense that a criminal defendant may use when charges have been brought against them. A mistake of law is one in which the defendant misunderstood the law or was ignorant of the law as it existed at the time the alleged crime was committed. These defenses are used to show that the defendant did not intend to commit the crime they have been charged with.

In most cases, the onus is on individuals to be aware of the laws in their state or community, and “ignorance of the law” is not a defense. Mistakes of law are used as a defense in four limited circumstances:

  • When the law in question has not been published
  • When the defendant relied upon a law or statute that was later deemed unconstitutional or overturned
  • When the defendant relied on a judicial decision that was later overruled
  • When the defendant relied on an interpretation by an official responsible for administering or enforcing the law

When using a mistake of law defense, the defendant must have reasonably believed that they were in fact not breaking the law when the alleged crime was committed. There are very few circumstances in which a mistake of law will be allowed as a defense.


One commonly used example to show a mistake of law is a defendant accused of robbing another person. Assume that the defendant was actually attempting to retrieve the money that the supposed victim of the robbery owed the defendant.

A court could hold that the defendant mistakenly allows for “self-help” in these situations, meaning that the defendant believed they could legally retrieve the money they were owed. It could be argued that the defendant did not intend to break the law. Rather, they were just getting the property that was already theirs.

Mistake of Fact

A mistake of fact is a bit different than a mistake of law. A mistake of fact arises when the criminal defendant misunderstood some fact that negates an element of the crime. For example, if the defendant is charged with larceny for taking property that they truly believed was rightfully theirs, this misunderstanding negates the intent to deprive another person of their property. For a mistake of fact to occur, it must be honest and reasonable.

If the defendant in the example above was told multiple times that the property they took was not theirs and they took it anyway, they cannot reasonably claim to have believed the property was theirs.

Mistakes of fact can apply to various crimes, and some crimes may even specify that a mistake of fact is a possible defense.