Basic Concepts of Criminal Law

By George P. Fletcher | Go to book overview

human being. Everyone seems to agree that type 1 mistakes negate the intent required for commission of the offense, but if the defendant is negligent with regard to the relevant element, he or she may be guilty of negligently committing the offense.

Type Two: Mistakes about Norms of the Definition , e.g., a mistake about whether property held in joint ownership with a spouse is property "belonging to another" under the rule defining theft. These are mistakes about whether particular factual situations fall within a prohibition of the criminal law. They are not, strictly speaking, mistakes about the interpretation of the norm and therefore do not qualify as mistakes of law. They are irrelevant to liability.

Type Three: Mistakes about the Factual Basis of Justification , e.g., Bernhard Goetz believes unreasonably that someone who smiles at him is about to attack him. This is the most controversial category. My view is that these mistakes should be treated as excuses, effective only if reasonable.

Type Four: Mistakes about the Norms of Justification , e.g., the actor thinks that consent is a defense in homicide cases. These are pure mistakes of law, for which the better rule would be to excuse all reasonable, unavoidable mistakes. If the mistake is unreasonable, it is not clear that the defendant should get the benefit of his good faith views.

Type Five: Mistakes about the Factual Basis of Excuses , e.g., the actor thinks he is in great danger when he is not. These mistakes should be relevant only so far as they permit the conclusion that the defendant's wrongdoing was, all things considered, not blameworthy.

Type Six: Mistakes about the Norms Governing Excuses , e.g., the actor thinks he is entitled to rely on the advice of his lawyer about what it is legal for him to do. These mistakes should be irrelevant.

It is appropriate to end the chapter with a judgment that certain kinds of mistakes are irrelevant. Yet these are difficult and subtle matters and there is room to argue that good faith reliance on a lawyer's advice should indeed be relevant. The issues raised in this chapter are among the most difficult in the theory of the criminal law. Readers are invited to make their own contribution to the problem.


Notes
1.
Alternatively, the court might claim competence by virtue of the suspect's or the victim's nationality. See StGB §7. Germany also claims jurisidiction

-167-

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Basic Concepts of Criminal Law
Table of contents

Table of contents

  • Title Page iii
  • Acknowledgments vii
  • Contents ix
  • Introduction 3
  • 1 - Substance Versus Procedure 7
  • Notes 23
  • 2 - Punishment Versus Treatment 25
  • Notes 40
  • 3 - Subject Versus Object 43
  • Notes 56
  • 4 - Human Causes Versus Natural Events 59
  • Notes 72
  • 5 - The Crime Versus the Offender 74
  • 6 - Offenses Versus Defenses 93
  • Notes 108
  • 7 - Intention Versus Negligence 111
  • 8 - Self-Defense Versus Necessity 130
  • Notes 145
  • 9 - Relevant Versus Irrelevant Mistakes 148
  • Notes 167
  • 10 - Attempts Versus Completed Offenses 171
  • Notes 184
  • 11 - Perpetration Versus Complicity 188
  • Notes 203
  • 12 - Justice Versus Legality 206
  • Notes 213
  • Index 215
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