DC Instruction 9.600. DEFENSES OF ACCIDENT AND MISTAKE—NOTE
State: District of Columbia
Criminal Jury instructions for the District of Columbia
Fifth Edition (2014)
Instruction 9.600. DEFENSES OF ACCIDENT AND MISTAKE—NOTE
Defenses of accident and mistake of fact (or non-penal law) have potential application to any case in which they could rebut proof of a required mental element. See, e.g., Clark v. U.S., 593 A.2d 186, 194, n.14 (D.C. 1991) (“[T]he prosecution is required to prove beyond a reasonable doubt that the killing was intentional or not accidental,” quoting Annotation, Homicide: Burden of Proof on Defense that Killing was Accidental, 63 A.L.R. 3d 936, 941 (1975)). In Morgan v. D.C., 476 A.2d 1128 (D.C. 1984), the District of Columbia Court of Appeals clarified that a mistake of fact or non-penal law can negate general intent as well as specific intent: “[w]hile general intent is frequently defined as the intent to do the prohibited act, it also requires the absence of an exculpatory state of mind (e.g., mental disease, reasonable mistake of fact).” Id. at 1132 (citing R. Perkins & R. Boyce, Criminal Law, pp. 831–32 (3d ed. 1982)). The court observed the closeness of the concepts of “mistake of fact” and “mistake of non-penal law,” offering the example of a trespasser who lacks criminal intent by reason of a mistaken but reasonable belief that a prescriptive easement applies. “The mistake may be as to the actual length of time that adverse use has continued (mistake of fact) or as to the time required to establish a prescriptive easement (mistake of law).” Id. at 1133 n.4. These defenses are not confined to assault cases. See, e.g., Simms v. D.C., 612 A.2d 215 (D.C. 1992) (affirming abandonment as mistake of fact defense in the context of tampering with a vehicle, where intent is required); Clark v. U.S., 593 A.2d 186 (D.C. 1991) (discussing accident in context of second-degree murder); Goddard v. U.S., 557 A.2d 1315 (D.C. 1989) (finding trial court’s refusal to instruct jury on abandonment in the context of unauthorized use of a vehicle was reversible error).
“It is also solidly established that general intent is not negated by a mistaken belief about the applicability of a penal law.” Bsharah v. U.S., 646 A.2d 993, 999–1000 (D.C. 1994) (internal citation omitted) (defendant’s mistaken belief that lawful possession of a pistol in Virginia entitled him to carry it in the District of Columbia was not a defense to a CPWL charge).
The hallmark of a mistake of fact defense is that “the defendant’s belief was honest and reasonable.” Simms, 612 A.2d at 219 (citing Williams v. U.S., 337 A.2d 772, 774–75 (D.C. 1975)). A mistake-of-fact defense cannot rest solely upon the defendant’s voluntary intoxication. See Cooper v. U.S., 680 A.2d 1370, 1372 (D.C. 1996) (trial court did not err in precluding argument that defendant’s drug use supported her defense of mistake in a Bail Reform Act prosecution).
The D.C. Court of Appeals has cautioned against shifting the burden of proof to the defendant, in the context of the defenses of accident and mistake. See Clark, 593 A.2d at 194 (finding it was error to instruct that the jury must find for the defendant “if you are satisfied that [his theory of accident] is what happened.”); Simms, 612 A.2d at 219 (finding it was error to conclude defendant could not interpose mistake of fact defense of abandonment unless he proved abandonment by clear, unequivocal and decisive evidence).
The Committee concluded that no general pattern instruction on these defenses could adequately provide for the range of contexts in which they arise, without resorting to a confusing array of alternative selections. The Court of Appeals has made it clear that a defense theory instruction tailored to the facts of the individual case is appropriate for this kind of defense. See, e.g., Clark, 593 A.2d at 194–95.
See also Abney v. U.S., 616 A.2d 856 (D.C. 1992) (holding that mistaken belief in constitutional law defense does not support a bona fide defense theory); Wiggins v. U.S., 521 A.2d 1146 (D.C. 1987) (finding mistake of fact a valid defense as to defendant’s belief of legitimacy of twenty-dollar bill); Gaetano v. U.S., 406 A.2d 1291 (D.C. 1979) (discussing “bona fide belief” defense to unlawful entry); Leiss v. U.S., 364 A.2d 803, 809 (D.C. 1976) (same); Jackson v. U.S., 357 A.2d 409, 411 (D.C. 1976) (holding that a bona fide belief must have some reasonable basis before an accused can claim that such belief exonerates his behavior); Smith v. U.S., 281 A.2d 438, 439–40 (D.C. 1971) (holding that it is not sufficient that an accused merely claim a belief of a right to enter; a bona fide belief must have some reasonable basis).
“Legal impossibility occurs when a defendant’s actions, or actions a defendant causes, even if fully carried out, would not constitute a crime.” German v. U.S., 525 A.2d 596, 606–07 (D.C. 1987) (citations omitted). When a defendant’s objective “is to do something that is not a crime,” there is a defense of legal impossibility. In re Doe, 855 A.2d 1100, 1106 (D.C. 2004). However, “factual impossibility, where the intended substantive crime is impossible of accomplishment merely because of some physical impossibility unknown to the defendant, is not a defense.” Id. at 1106 (citing 2 Wayne R. LaFave, Substantive Criminal Law § 11.5(a), at 231 (2d ed. 2003) (“We have no reason to think that it would be a defense in the District of Columbia to a charge of attempted enticement of a child that the defendant was fooled because his target was in reality an undercover law enforcement officer.”). “Factual impossibility occurs when the objective of the defendant is proscribed by the criminal law, but a circumstance unknown to the actor prevents him or her from bringing about that objective.” German, 525 A.2d at 607 (citing U.S. v. Oviedo, 525 F.2d 881, 883 (5th Cir. 1976)) (recognizing legal but not factual impossibility “is often elusive,” however, “it may be more useful to inquire whether a defendant had the requisite mens rea and performed substantive acts in furtherance of a criminal objective.” In re Doe, 855 A.2d at 1106 n.10.