Comment

Whether the “rule” that a mistake of fact can obviate a required culpable mental state is limited to objectively reasonable mistakes has long troubled the criminal law. The common-law position is often stated as providing that an unreasonable mistake can be used by a defendant to negate a “specific” but not a “general” intent required by a charged crime.

The Model Penal Code proposed that any such limitation be abandoned. Under section 2.04(1)(a), any mistake that “negatives” any culpable mental state required by the offense is a “defense.” Model Penal Code § 2.04(1)(a) (Proposed Official Draft 1962). Many jurisdictions have followed this approach. A number of jurisdictions, including Texas, have not and instead provide by statute for a mistake-of-fact defense limited to reasonable mistakes.

Some members of the Committee believed that the approach taken in Texas Penal Code section 8.02(a) and a number of other state statutes violates federal and perhaps state constitutional requirements. Due process requires proof of all elements beyond a reasonable doubt. A statutory provision that prevents defendants from challenging such proof on the basis of honest but unreasonably held mistake, they contended, interferes with the constitutionally required burden of proof. Cf. Ruffin v. State, 270 S.W.3d 586, 594 (Tex. Crim. App. 2008) (“The defendant’s right to present a defense generally includes the due-process right to the admission of competent, reliable, exculpatory evidence to rebut any of [the culpable mental state] elements.”).

Further, the right to jury trial under the Sixth and Fourteenth Amendments and perhaps under state constitutional law includes a right to have the jury informed of the state’s burden of proof in a reasonably clear and internally consistent manner. This right is violated, some Committee members concluded, if a jury is told both to require proof of a subjective culpable mental state but also to ignore evidence of an honest but unreasonable mistake of fact that shows that culpable mental state was lacking.

The U.S. Supreme Court has never addressed the federal constitutional issue. In Cheek v. United States, 498 U.S. 192 (1991), the Court held—apparently as a matter of federal nonconstitutional law—that a federal trial judge erred in instructing a jury that the defendant’s mistake could be considered in deciding whether the government had proved the required “willfulness” only if that mistake was objectively reasonable. Forbidding the jury to consider evidence of an unreasonable mistake that if considered might negate the required willfulness “would raise a serious problem under the Sixth Amendment jury trial provision.” Cheek, 498 U.S. at 203.

Some lower courts have reasoned that, whatever Cheek means, it is limited to situations in which defendants rely on mistake about “law” rather than “fact.” Lemon v. State, 837 S.W.2d 163, 166 (Tex. App.—El Paso 1992), rev’d on other grounds, 861 S.W.2d 249 (Tex. Crim. App. 1993) (“[I]n Cheek it was argued that he had a reasonable good faith misunderstanding of the law—not fact.”); Sanford v. State, 499 N.W.2d 496, 500 (Minn. Ct. App. 1993) (“Cheek was a mistake of law, rather than mistake of fact, case.”). How this might limit Cheek is unclear. Given the more limited defense of mistake of law, it seems likely that any constitutional bar to limiting a mistake-of-law defense would apply even more rigorously to states’ ability to limit defenses of mistake of fact.

In other cases, the Supreme Court has left unclear the extent to which states may limit a jury’s consideration of evidence logically indicating the defendant did not have the culpable mental state required by the charged offense. In Clark v. Arizona, 548 U.S. 735 (2006), for example, the Court held that Arizona could limit the extent to which juries could consider evidence of mental impairment in considering whether the prosecution proved the required culpable mental state. With apparent care, however, it did not reach whether the federal constitution would permit a state to bar consideration of all such evidence.

Without an opinion from the majority of the Court, the Supreme Court upheld a conviction for intentional or knowing murder although the jury was instructed that it could not consider the defendant’s voluntary intoxication in deciding whether the prosecution had proved intent to kill or knowledge that death would result. Montana v. Egelhoff, 518 U.S. 37 (1996). Some members of the Court reasoned that the federal constitutional limits on states’ ability to limit consideration of such evidence depended on whether the limit was imposed as part of the definition of the required culpable mental states or, rather, as a limit on the admissibility of evidence.

No court appears to have held that any of the numerous state mistake-of-fact reasonableness requirements are actually unconstitutional. The New Jersey Supreme Court struggled with the problem and “solved” it by an analysis that basically redefined the requirement of reasonableness out of existence. State v. Sexton, 733 A.2d 1125 (N.J. 1999). No other court has discussed this approach.

Apparently the only Texas case to consider a possible constitutional defect in Texas law governing mistake of fact is Shands v. State, No. A14-90-00844-CR, 1992 WL 99607 (Tex. App.—Houston [14th Dist.] May 14, 1992, pet. ref’d) (not designated for publication). The court described the contention before it as follows:

Shands, 1992 WL 99607, at *7. The court concluded that the authorities relied on by Shands were not necessarily controlling. Then, with no discussion of whether Shands’s logic was persuasive, it rejected his contention:

Shands, 1992 WL 99607, at *7.

The court of criminal appeals did address the application of section 8.02 in Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010). Mays unsuccessfully sought a mistake-of-fact instruction on the ground that his mental impairment caused him to mistakenly believe officers seeking to arrest him were “rogue cops” intent on doing him illegal harm, and thus he did not have the awareness they were “acting in the lawful discharge of an official duty.” Mays, 318 S.W.3d at 382. Mays maintained that this culpable mental state was required by the charged capital murder. Refusal of the instruction was held proper on several alternative grounds. One of these grounds was that any belief Mays had that in fact negated a required culpable mental state was not a reasonable one. “The law examines ‘reasonableness’ from the perspective of an ordinary and prudent person,” the court explained, “not from that of a paranoid psychotic who is, by psychiatric definition, ‘unreasonable’ in his imagined suspicions, delusions, and fears.” Mays, 318 S.W.3d at 383.

Mays, then, discussed and applied the statutory requirement of reasonableness with no indication that it might be constitutionally suspect. This discussion and application, however, came only with alternative rationales for the holding: the defense evidence did not tend to show Mays believed the officers were rogue cops, and the charged offense did not require a belief by him that the officers were acting in the lawful discharge of an official duty.

Some Committee members believed that section 8.02 would be held constitutional by the U.S. Supreme Court. First, they noted that the Court in Cheek was confined to interpreting the word willfully in the federal tax code. This code is so confusing that a defendant who makes an honest but unreasonable mistake about tax law is not guilty. To assure this result, Congress used the word willfully as a word of heightened mens rea. Cheek is strictly a statutory holding, not a constitutional one. Once the Court interprets willfully as requiring an honest (even if unreasonable) belief about the law, there may be a constitutional question should the judge attempt to exclude evidence that the defendant honestly but unreasonably interpreted the tax code. However, Cheek does not opine as to the constitutionality of a statute requiring that all mistakes of fact (even mistakes about intentional and knowing crimes) be reasonable, as there is no such statute in the federal code.

These Committee members further believed that the Eglehoff and Clark cases support the constitutionality of section 8.02. Though there was a 4-1-4 split in Eglehoff, all nine Supreme Court Justices agreed that Montana could, consistent with the federal Due Process Clause, bar evidence of voluntary intoxication (even when it directly refuted the mens rea of intent in a murder charge). The four in the plurality believed there was no fundamental right to negate mens rea with evidence of intoxication. The disagreement was merely in the means for the state to reach this acceptable goal. The four dissenters agreed that the state could bar such evidence, but it had to use its substantive criminal code, not an evidentiary device. The fifth vote by Justice Ginsburg held that the Montana legislature did redefine its criminal code to include killing intentionally or drunkenly. More recently, in Clark, six Justices agreed that Arizona could bar evidence of mental disease even if such evidence directly negated the mens rea necessary for murder. No fundamental right of the defendant bars the state from channeling such evidence into an insanity defense and placing the burden of proof by clear and convincing evidence on the defendant. Likewise, it seemed to these Committee members that there is no due-process right rooted in history or fundamental fairness to have an honest mistake-of-fact defense (rather than a reasonable one).