Criminal Law Class Notes 9/19/03


Look at Model Penal Code § 2.02(9): this codifies, more or less, the common law idea that generally knowledge of a law’s existence and understanding of its meaning is not a required element of an offense, unless the statute itself says to the contrary.


Put this together with § 2.02(1): there must be a mens rea for each element of the crime.  In a sense, § 2.02(9) makes an exception to this general rule.


In short, you don’t have to prove that the defendant understood the law, usually.


What are the exceptions?  § 2.04(1) says that if the statute explicitly says you must know the law to be subject to it, then fine.  § 2.04(3) further says that you may have a limited defense on the basis of your reliance on an official statement of the law from an appropriate source.  This is a very limited exception, though.


However, § 2.04(3) does not permit a defense based on your personal misunderstanding of the law.  The defendant must reasonably rely on an official statement of the law (from an appropriate, specified source) that is afterward determined to be invalid.


Note that in these areas, the Model Penal Code is more or less a restatement of common law.


Hopkins, the minister who puts up wedding signs, loses because his defense doesn’t meet these criteria.


Dressler says the federal criminal code is the pits.[1]


The Weiss statute


There’s something about the case of People v. Weiss that is different from People v. Marrero.  What’s that?


Weiss involves a small incident in the Lindbergh kidnapping case.  X wanted to arrest someone for the kidnapping (it turned out it was the wrong person).  X needed help to make the arrest and Weiss was a private citizen hanging out in the area.  Officer X says to Weiss, “Help me!”  Weiss says “Can I really do that?”  X gave Weiss a little sheriff’s badge and says “OK, now you’re a cop.”  Weiss thinks he has authority, but he really doesn’t.  Weiss is charged with kidnapping (really, being an accomplice). 


Weiss claims that he thought he had authority of law.  How does Weiss’s mistake differ in character from that of Marrero?


Duress might be relevant to the question of whether the mistake was reasonable.


Cheek v. United States


Cheek was charged with tax evasion and not filing tax returns.  The mens rea term in the statute is “willfully”.  Cheek claimed that he didn’t have to pay taxes because “wages” are not “income”, or because the Sixteenth Amendment didn’t apply, or some such crap.


In essence, what is Cheek’s claim?  Why didn’t he have to pay income tax or file reports?  Why does he claim that his conviction should be overturned?  He claims that he acted without the mens rea of willfulness.


According to the trial judge, under what circumstances should Cheek’s mistake of law cause him to be acquitted?  The judge said that Cheek must have an honest and reasonable belief.  The jury convicted him on this standard.


Cheek claimed that his misunderstanding need only be honest, but not necessarily reasonable.


What’s different between Cheek’s mistake and Marrero’s mistake?  Why does the Supreme Court agree with Cheek that he should be acquitted even if his mistake was unreasonable?  The Court says there is a special definition of “willfully” in the context of these tax statutes.


“Willfully” can have many different meanings in different contexts.  In this case, it means “voluntary, intentional violation of a known legal duty”.


So why does it follow that if Mr. Cheek honestly believed that he didn’t have any taxes to pay, even if that belief was entirely unreasonable, that he should be acquitted of the crime?  If he didn’t believe it was a legal duty, then he didn’t violate a known legal duty.


It can be then argued that this is a specific intent crime in the sense of a crime where you must know about an attendant circumstance, namely, that Cheek has a legal duty.


Think back to mistake of fact.  The first question to ask is whether you have a general intent, specific intent, or strict liability crime.


This tax statute is a specific intent crime.  The next question is whether or not the mistake relates to the specific intent portion of the specific intent crime.  We may conclude that it does.  Cheek’s mistake relates to whether he did or did not have knowledge of his legal duty.


What’s the next question?  Does this mistake of fact negate this specific intent?  Has the prosecutor proven beyond a reasonable doubt this element of the crime?


We are not interested in whether or not Cheek is culpable.  That’s what we do in a general intent case.


The question for the jury is whether or not Cheek violated a known legal duty.  If he didn’t know, he didn’t violate a known legal duty, and thus he must be found not guilty.  But the question of whether or not he knew is a question of fact, and thus a question for the jury, if it had been properly instructed in this case.


The conviction was overturned and Cheek was retried.  On the second trial, a correct instruction was given and the jury convicted him again.   This goes to show that juries don’t have to believe defendants’ claims.


Congress was not so concerned about the Cheek case that they wanted to go back and change the statute.  How come?  Think about the politics.  Most criminal laws apply only to bad dudes.  Tax laws apply to everybody.  It would be politically unpopular to tighten up tax laws and other white collar crime laws.


This is not inconsistent with the Model Penal Code.  Look at § 2.04(1), which tells you that there’s an exception to the “ignorance is no excuse” rule when the statute specifically says you must have knowledge, recklessness, or negligence in regard to the law.


Let’s pretend we’re Mr. Weiss’s attorney.  Why should my client be found not guilty of this crime in light of his mistake of law?  His intent was to cause the person to be confined with authority of law, not without authority of law.


Let’s say we’re the prosecutor.  What’s our answer to that argument?  We might argue textually that the phrase “without authority of law” was set off by commas, which often means that the preceding word “intent” does not apply to that particular phrase.


At common law, or in other words, if we’re not in a Model Penal Code jurisdiction, it’s ambiguous whether a culpability or mens rea word modifies everything that comes after or only some bits.


The Model Penal Code § 2.02(3) and (4) makes life a lot easier, but it didn’t apply in Weiss (in 1933 in New York).


It ended up that the textual arguments split the Court of Appeals of New York 4-3 for Weiss (“intent” does apply to “authority of law”).  Dressler would side with the dissenters in this case (“intent” skips over “authority of law”).


Back to Class Notes

[1] They tried to reform it with the Kennedy-Thurmond (!) Bill of 1968.  In fact, it would have created an entirely new code and used many elements from the Model Penal Code.  It was killed in committee by prosecutors and federal judges who basically wanted the status quo because they already knew how to use it.  They didn’t want to have to learn anything new.  The Washington Post killed the bill again based on their cynical belief that § 2.04(3) had been stuck in the bill to get Nixon off the hook.