Mistake as a Defense in Criminal Law

by | Dec 13, 2018 | Blog Posts, NC Criminal Defense

Criminal charges can come for a wide variety of activities but as we have previously written, they all come from a voluntary act. We handle criminal law on a day to day basis and speak to hundreds of clients and potential clients about criminal matters. One thing we have noticed through these conversations is that people get a lot of their information from television.

Additionally,they make blind assumptions about what they learn on television.  Usually these assumptions are based on what they think the law should be.  One example is that people put too much emphasis on mistakes.  In this blog, we will talk about how a“mistake” is considered in criminal law. This blog is for informational purposes only and is not intended as a substitute for the advice and counsel of a criminal defense lawyer.

Mistake of law in a criminal matter

“Ignorance of the law is not an excuse”.  You may have heard this quote before. This has always been the case, and there is even more reason for it to be true now.  It is never an excuse for a defendant to assert that he wasn’t aware that some activity was against the law.  One of the many reasons for this is that anyone could just say that they didn’t know. 

Laws are a matter of public record, and they always have been.  In today’s internet age it is easier than ever to gain access to criminal laws. Just because you didn’t know something was illegal, doesn’t mean that you can perform the activity without consequence.

Mistake of fact in a criminal matter

Mistake of fact is an affirmative defense that can be asserted and can become part of trial strategy.  Typically, mistake is used to negate one of the essential elements of the crime charged. In a criminal matter,the defendant always has the presumption of innocence and it falls to the government to overcome that. Mistake,however, is a defense that has to be proven by the defendant, and if he can provide enough evidence of it, the defense will get a jury instruction on mistake.

When mistake of fact works as a defense

In order for mistake to work as a defense, an element of the crime must involve knowing the fact that the defendant was mistaken about. While mistake of a fact may be a defense in a specific intent crime (because lack of knowledge may negate intent), mistake of fact will never prevail in a strict liability crime, such as statutory rape.


  • Mistake of fact would be effective in a breaking and entering case if the defendant thought he was locked out of his house, and was trying to get in, rather than breaking into someone else’s house.  This is because this crime requires the specific intent to break into the dwelling of another person.
  • Mistake of fact would be ineffective against a statutory rape charge if the defendant thought that the victim was older.  This is because this crime is a strict liability crime.

If you have been charged with a crime, the best decision you can make is hiring a criminal defense attorney. We handle criminal defense in North Carolina, criminal defense in South Carolina, and Federal criminal defense.  Contact ustoday.

DISCLAIMER – This forum is intended for general questions and comments about the particular law or topic. Comments are public and are not protected by confidentiality or attorney-client privilege; therefore, they can be used against you in court. Please refrain from revealing your identify or specifics about any actual criminal case. No attorney-client relationship is created in this forum.

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