Mistakes That Reduce Grade

Mistakes That Reduce Grade

The negation test from the preceding sections can end in an outright acquittal, and section 2.04(2) of the Model Penal Code marks the limit of that result. A mistake that would otherwise afford a defense to the charged offense gives no defense if the defendant would be guilty of another offense had the situation been as he supposed.¹ The mistake still counts in that setting, because the subsection directs that it "reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed."² The analysis therefore has two halves. Section 2.04(1)(a) asks whether the mistake negatives the mental state required for a material element,³ and subsection (2) then asks what offense the defendant's own belief would have amounted to and measures liability against that belief.

Each operative part of the subsection rests on its own reason. Denying the complete defense answers the problem that a defendant who thought he was committing a lesser crime has still done wrong. A criminal offense occurred on either view of the facts, the facts as they were and the facts as he believed them to be, so an acquittal would release someone the law has good reason to punish.⁴ Reducing the grade answers the opposite problem. A conviction for the charged offense would hold the defendant liable for an aggravating fact toward which, by hypothesis, he lacked the culpability the Code requires. The drafters put the point as a matter of measurement: the effective measure of liability is the defendant's culpability, not the actual consequences of the conduct.⁵

The reduction also closes a procedural gap that would otherwise open between the two offenses. The defendant cannot be convicted of the greater offense, because the mistake negates its mental state. Conviction of the lesser offense might look unavailable as well, since the conduct that offense requires may be missing on the facts as they actually occurred, and a charge of attempt can falter under some versions of the impossibility doctrine.⁶ Subsection (2) removes the obstacle by authorizing conviction of the offense the defendant would have committed on his own assumptions, which produces a result proportioned to what he actually did.⁷

The rule answers an older view, expressed in a similar form as early as the Prince case, that a person who commits some crime with some mens rea is liable for every criminal result that follows, whatever mental state attaches to those results.⁸ The Code rejects that view and holds the actor liable only for the crime he believed he was committing. Its reasoning reaches mistakes that affect the grading of an offense as well as mistakes that change its type, because a material element includes the facts that aggravate the offense.⁹ Jurisdictions that have not adopted the Code often still follow the older approach, particularly in offenses involving minors, sexual conduct, and drugs, so an exam answer should first identify which regime governs.¹⁰

The fact that moved the answer is whether the situation as the defendant supposed it still amounts to a crime. When it does, as with the punch, the mistake lowers the conviction without erasing it. When it does not, as with the umbrella, the ordinary negation analysis controls and the defendant goes free. One caution keeps the reduction from being applied too widely. Subsection (2) operates only after the mistake has been found to defeat the mental state of the charged offense. The drafters' own example assumes a belief formed in a manner that could not be characterized as reckless,¹¹ so a defendant who consciously disregarded a known risk about the aggravating fact has a mistake that negates nothing, and the full offense stands.

Two questions remain, and the next two sections take them in turn: how a conviction for the supposed offense works in the drafters' burglary example, and why the Code refuses to treat a belief in committing only a lesser wrong, or only an immoral act, as a reason to convict of the greater crime.

Convicting of the Supposed Offense

The drafters' burglary example shows subsection (2) at work, and it starts with the way the Code grades the offense. Burglary is entry into a building or occupied structure for the purpose of committing a crime inside, and it is ordinarily a third-degree felony that rises to a second-degree felony when the building is the dwelling of another and the entry is at night.¹⁴ Dwelling and night are aggravating facts written into the definition, and because the Code's idea of a material element reaches facts that affect grading, the defendant's culpability toward each of them is part of what the prosecution must prove.¹⁵ When the definition states no culpability term for an element, the Code's default requires purpose, knowledge, or recklessness as to it.¹⁶ For the dwelling aggravator that default comes to this: the prosecution must show that the defendant was at least reckless about whether the building was a dwelling.

Now add the mistake. The defendant enters the building at night with the purpose of committing a crime inside, and the building is in fact a dwelling, but he believed it was a store and formed that belief in a manner that could not be characterized as reckless.¹⁷ That belief leaves him without the recklessness the dwelling aggravator demands, so the ordinary negation test of section 2.04(1)(a) takes the second-degree charge out of the case.¹⁸ Two other dispositions then need to be ruled out. Acquittal is wrong, because on either view of the facts a criminal offense was committed: he entered a building at night intending to commit a crime in it.¹⁹ Conviction of burglary of a store on its own terms looks unavailable as well, since that offense requires the conduct of entering a store and the building was not one, and even a charge of attempted burglary of a store may be doubtful under some versions of the impossibility doctrine.²⁰

Subsection (2) resolves the difficulty by changing what the court measures. It permits conviction of the offense of which the defendant would be guilty "had the situation been as he supposed," and it sets the grade and degree of the conviction at those of that offense.²¹ The defendant in the example is therefore convicted of third-degree burglary, with the classification and dispositions that belong to that offense and none that belong to the second-degree grade.²² The provision also avoids the procedural puzzle just described, because it authorizes a finding of guilt of the lesser crime the defendant committed on his own assumptions without requiring that the lesser offense's conduct element be present in the actual facts.²³

This measure is the right one because of what each alternative would do. Convicting at the second-degree grade would punish him for an aggravating fact toward which he lacked the required culpability. The legislature that raised the grade for dwellings made the defendant's culpability toward that feature part of the measure of his criminality, and the drafters observed that denying the mistake any effect would in substance recharacterize, for this one purpose, the culpability the Code ordinarily requires for the more serious offense.²⁴ Acquittal fails in the opposite direction by releasing someone who is blameworthy however the facts are viewed. The third-degree conviction sits between the two and tracks what the defendant actually intended, because the effective measure of liability is culpability and not the actual consequences of the conduct.²⁵ The older approach to mistakes that merely change the degree reached a different result: a burglar who honestly and reasonably believed it was daytime was still guilty of burglary, at the nighttime grade where the state grades burglary by degree.²⁶ The Code instead holds the actor liable only for the crime he believed he was committing.²⁷

The reduction has a limit that the example makes visible, and it comes from the words of the subsection: the defendant is convicted of the offense he would have committed had the situation been as he supposed.²⁸ That formulation presupposes that some offense exists on the supposed facts. When the supposed facts describe no crime at all, there is nothing for the conviction to drop to, and the mistake remains the complete defense that the negation test gave it. A larceny defendant shows the point: the intent to steal is missing when a person takes property because he believes it belongs to him, and on his own assumptions he has done nothing criminal.²⁹ The umbrella taken from the restaurant rack in the preceding section is this situation, and the same contrast can be drawn inside burglary by changing one fact.

The two defendants entered the same house in the same way, and the fact that moved the answer is what each supposed. The first supposed a state of affairs in which burglary is still committed, only at a lower grade, so he is convicted at that lower grade. The second supposed a state of affairs in which no offense is committed at all, so the charge fails. The trap is to grade the conviction by the facts as they actually occurred, which hands the first defendant the second-degree conviction that his mistake prevents. The reliable approach is to retell the case on the defendant's own assumptions and ask what offense, if any, that version describes; that offense fixes the ceiling on the conviction, and if there is none the defendant is acquitted of the charge.

Lesser-Wrong and Moral-Wrong Theories

Subsection (2) settles what a defendant with a mistake-based defense may still be convicted of, but an earlier question is whether the mistake should count at all when the defendant believed he was doing something wrong. Courts have offered two answers that deny the mistake any effect, and the Code rejects both. The lesser legal wrong theory holds that a defendant who knowingly commits one crime runs the risk that it turns out to be a graver one, so a mistake about the aggravating fact gives no relief. The moral wrong theory reaches further. It denies the defense to anyone whose conduct would have been wrongful even on the facts as he believed them, and many courts have relied on it in statutory rape prosecutions, where a defendant who misjudged the other party's age is told that he was acting wrongfully in any event.³¹ Both ideas appear in Prince: the majority took the broader moral-wrong approach, while Judge Brett, dissenting, would have withheld the defense only from a defendant who knowingly commits a crime, which is the narrower lesser-crime principle.³²

The Code's reason for rejecting both begins with how offenses defined by a bad result are built. Such an offense requires mental fault of the same kind and intensity as the result, and fault sufficient for some other kind of crime will not substitute for it.³³ A person who acts intending to injure someone, and who unexpectedly damages property instead, ordinarily cannot be convicted of an offense of intentionally destroying property.³⁴ The explanation lies in what punishment is for. Deterrence, correction, and condemnation each respond to the harm the actor intended, so the actor in that example merits condemnation, needs correction, and warrants a deterrent response because of the intent to hurt a person, whatever happens to the property.³⁵ A mistake of fact or law produces the same gap whenever it leaves the defendant's mental state different in kind or intensity from the bad result his conduct caused, and the same analysis therefore governs it.³⁶ The two theories skip that analysis by treating culpability for one offense as a stand-in for culpability toward the element that makes another offense graver. The Code refuses the substitution and holds the actor liable only for the crime he believed he was committing.³⁷

The fact that moved the answer is what the defendant knew about the aggravating feature. The lesser-wrong theory looks only at the knowing theft and attaches the firearm grade as the price of bad luck. The Code asks about culpability toward the firearm itself, because a legislature that raised the grade for firearms made that feature part of the measure of the crime, and finding none, it grades the conviction at the third degree. The defendant is not acquitted, because theft occurred on the facts as she supposed them, and that is the conversion subsection (2) performs.³⁸ Two further points count against the lesser-crime principle. Common-law decisions already refused to extend it when the offense the defendant meant to commit was a different crime from the charged one, as in Cunningham, where a defendant guilty of stealing a gas meter could not be convicted of the graver offense of endangering another person unless he was aware of that danger.³⁹ The principle has also been criticized because it lets the prosecutor's choice between charging the lesser or the graver offense fix the penalty, though the defendant's underlying fault is the same either way.⁴⁰

The moral-wrong theory fails for the same reason, and it has a second defect of its own. If a defendant took the situation to be one in which, at most, he was doing something immoral, there is no justification for ignoring his mistake. The governing idea is that "Moral duties should not be identified with criminal duties."⁴¹ The standard illustration involves a defendant who has intercourse with a person under the legal age after a reasonable mistake about that person's age, in a jurisdiction where fornication is itself not criminal.⁴² Age is the only fact that turns permitted conduct into an offense, so a defendant who reasonably misjudged it lacks culpability toward the very fact that supplies the criminality. Convicting anyway would let disapproval of the conduct stand in for the culpability the offense requires, and fornication would become criminal merely because the defendant made a reasonable mistake about age. Because the facts as the defendant supposed them describe no offense, subsection (2) has no lesser crime to convict of, and the ordinary negation rule controls: the mistake negatives the culpability the age element requires, and the defendant is acquitted.⁴³ The second defect is practical. A court that denies the defense because the conduct is wrongful must decide what the community ethic actually is, and in a heterogeneous society public pronouncements about morality often differ from private conduct, so the inquiry has no stable answer.⁴⁴

Rejecting the two theories as general principles leaves room for denying a mistake defense as to a particular element, provided the judgment is made offense by offense. There may be sound policy reasons for imposing, in effect, strict liability as to an element of a given crime.⁴⁵ The Code's treatment of sex offenses supplies the example: when criminality depends on the child's being under ten, the actor's belief that the child was older is no defense, because no credible error about a child that young would make the conduct anything less than a "dramatic departure from societal norms."⁴⁶ Set beside the fornication example, this rule shows which fact does the work. In both settings the defendant erred about age, but the mistake fails only where the offense itself withdraws the defense, and it does so because the range of credible mistakes is effectively empty at that age, which is a fact about the offense rather than an inference from the defendant's having done something wrong. A similar offense-specific judgment appears in strict-liability offenses. A rule that mistake can never be a defense there goes too far, yet even a well-grounded mistake does not exculpate if greater care, which it is not unreasonable to require in that setting, would have uncovered it.⁴⁷

On an exam, the tempting argument in a stem about a defendant who was up to no good is that the defendant's wrongdoing forecloses the mistake. The Code rejects that argument, and the analysis proceeds in a different order. It asks whether the mistake negatives culpability for a material element, including an aggravating one; if so, it asks what offense, if any, the supposed facts describe, which fixes the ceiling on conviction under subsection (2); and it checks whether the offense carries an offense-specific rule, such as the under-ten provision, that removes the defense as a matter of policy.⁴⁸