Taking Mistakes Seriously

28 B.Y.U. J. of Pub. L. (2014) (Forthcoming)

39 Pages Posted: 14 Jan 2014 Last revised: 24 Jan 2014

Date Written: January 13, 2014


There are two very different mistake doctrines in the law. The common law doctrine that ignorance of the law is no excuse gives no weight to reasonable, good faith mistakes insofar as criminal liability is concerned. By contrast, three related lines of decisions — the reasonable-mistake, qualified-immunity, and harmless-error doctrines — express great willingness to overlook reasonable, good faith mistakes that police officers, prosecutors, and judges make. That discrimination is unwarranted. There is no good reason to treat private parties systematically worse than public officials in this regard. The courts have created these competing lines of decisions, and they, or Congress, should eliminate that discrimination by extending to members of the public the same grace that they offer to every government official. The most straightforward way to remedy this problem is to recognize a mistake-of-law defense in the substantive criminal law.

Keywords: Mistake of law, ignorance of the law, reasonable mistake exception to the exclusionary rule, qualified immunity, harmless error doctrine

Suggested Citation

Larkin, Jr., Paul James, Taking Mistakes Seriously (January 13, 2014). 28 B.Y.U. J. of Pub. L. (2014) (Forthcoming). Available at SSRN: https://ssrn.com/abstract=2378588

Paul James Larkin, Jr. (Contact Author)

The Heritage Foundation ( email )

214 Massachusetts Ave NE
Washington, DC 20002-4999
United States
202-608-6190 (Phone)

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