§702-218 Ignorance or mistake as a defense. In any prosecution for an offense, it is a defense that the accused engaged in the prohibited conduct under ignorance or mistake of fact if:
(1) The ignorance or mistake negatives the state of mind required to establish an element of the offense; or
(2) The law defining the offense or a law related thereto provides that the state of mind established by such ignorance or mistake constitutes a defense. [L 1972, c 9, pt of §1]
COMMENTARY ON §702-218
[Section 218, as contained in the Proposed Draft of the Code provided that ignorance or mistake of fact or law was a defense under the conditions stated above. The following commentary is based on this initial proposal for §218.]
This section states the logical concomitant of the requirement that to establish each element of an offense a certain state of mind with respect thereto must be proven. Thus, if a person is ignorant or mistaken as to a matter of fact or law, the person's ignorance or mistake will, in appropriate circumstances, prevent the person from having the requisite culpability with respect to the fact or law as it actually exists. For example, a person who is mistaken (either reasonably, negligently, or recklessly) as to which one of a number of similar umbrellas on a rack is the person's and who takes another's umbrella should be afforded a defense to a charge of theft predicated on either intentionally or knowingly taking the property of another. Also, a person, mistaken as to the effect of a divorce decree erroneously purporting to sever the marital ties of his wife, who marries another woman should not be convicted of bigamy if bigamy requires knowledge by the defendant of the defendant's existing marital status. A reckless mistake would afford a defense to a charge requiring intent or knowledge--but not to an offense which required only recklessness or negligence. Similarly, a negligent mistake would afford a defense to a charge predicated on intent, knowledge, or recklessness--but not to an offense based on negligence.
This section of the Code deals with ignorance or mistake of fact or law, but it is not intended to deal with the limited problem of the defense afforded a person who engaged in conduct under the mistaken belief that the conduct itself was not legally prohibited. That problem is dealt with exclusively by §702-220.
Previous Hawaii law recognized a defense based on ignorance or mistake of fact[1] or law,[2] but usually the law required that the ignorance or mistake be reasonable.[3] The Code correlates the culpability required for commission of the offense with the culpability which will deprive ignorance or mistake of effect as a defense.
SUPPLEMENTAL COMMENTARY ON §702-218
The legislature in dealing with §702-218 deleted a defense based on mistake of law. The legislature said that it was "thereby avoiding a major dilemma with respect to enforcement of the provisions of this Code. The defenses of ignorance of the law afforded by §§702-218 and 220 would have been available, to a degree, under any given set of circumstances and as such would have constituted a major encumbrance to enforcement of the substance and spirit of the Code." See Conference Committee Report No. 2 (1972).
Although the legislature did not provide for a defense based on mistake of law, the State Supreme Court has recognized that, in some instances, there must exist, as a necessary corollary to the definition to certain offenses, a defense based on this type of mistake. See State v. Marley, 54 Haw. 450, 476-477, 509 P.2d 1095, 1111-1112 (1973). The court cited §702-220 of the Hawaii Penal Code as providing a defense to a state trespass prosecution in the case of honest and reasonable belief ("no matter how incorrect such a belief might be") that another law (American treaty law) afforded a defense to the trespass.
Case Notes
Where a defendant has adduced evidence at trial supporting an instruction on the statutory defense of ignorance or mistake of fact, the trial court must, at the defendant's request, separately instruct as to the defense, notwithstanding that the trial court has also instructed regarding the state of mind requisite to the charged offense. 100 H. 195, 58 P.3d 1242 (2002).
Trial courts must specifically instruct juries, where the record so warrants, that the burden is upon the prosecution to prove beyond a reasonable doubt that the defendant was not ignorant or mistaken as to a fact that negates the state of mind required to establish an element of the charged offense or offenses. 107 H. 239, 112 P.3d 725 (2005).
Because §708-836 does not "plainly appear" to render its specified state of mind inapplicable to the authorization element, the intentional or knowing states of mind apply to the authorization element; thus, a defendant prosecuted under §708-836 may assert the mistake-of-fact defense under this section with respect to the authorization element, where defendant claims that defendant mistakenly believed that the person who authorized defendant's operation of the vehicle was the vehicle's registered owner, because such a belief would potentially negative the state of mind required to establish the authorization element of the offense. 117 H. 235, 178 P.3d 1 (2008).
Where, based on the evidence presented, petitioner provided some basis for the jury to believe that (1) petitioner was mistaken as to the reporting requirements associated with receiving public assistance and/or (2) petitioner was mistaken as to certain factual matters regarding petitioner's personal situation which caused petitioner to misreport, there was a reasonable possibility that the jury, if provided with a separate mistake of fact instruction, could have found that petitioner did not knowingly deceive the human services department; thus appellate court erred in concluding that petitioner was not entitled to a mistake of fact instruction. 122 H. 271, 226 P.3d 441 (2010).
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§702-218 Commentary:
1. The King v. Grieve, 6 Haw. 740 (1883) (ignorance of Hawaiian language precluded "knowing" publication in that language); Territory v. Hall, 17 Haw. 536 (1906).
2. Territory v. Lo Kam, 13 Haw. 14 (1900) (mistake as to lawful authority to remain on premises was a defense to a charge of vagrancy).
3. Territory v. Hall, supra; State v. Dizon, 47 Haw. 444, 461, 390 P.2d 759, 769 (1964).
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