Background for Lady Eldon`s Lace

34
LarryAlexander
34
Philosophy
of
Lawbehavior,which risks or causes social harm,
Spring 
because
their
is Alexander
Larry
culpable
behavior. But for various reasons a wedge can be driven between
because their harm. One
which
or harm
causeswithout
social harm, is culpable
canrisks
cause
culpability andbehavior,
being culpable.
for
behavior.
But
various
a
reasons
can
be driven
between
wedge
And one can be culpablewithout causing
harm.Many
of the theoretiand
harm.
One can
cause
harm
without
culpability
culpable.
within
cal
the
of
criminal
law
on
the
being
center
disputes
study
gap beAnd one
canand
be culpablewithout
harm.
of to
the
theoretiMany
harm
and
tween
the
to
it.
causing
culpability
properway respond
within the
calMistakes
of criminal law center on the gapmisbedisputesillustrate
thisstudy
gap. One can cause harm because one
harm
and
tween
and
the
to
to
it.
 etakenly
traditional
treatment
ofismistakes
in
the
lawcan mistakenly
culpability
properway
respond
thinks one's
conduct
one
harmless.
And
Mistakes
illustrate
this
Onewhen
harm because one miscan cause
gap.harm
will
think
one'sconduct
cause
it won't.
thinks one's
conduct
harmless.
And one can mistakenly
takenly
of ismistakes
in Anglo-American
The traditional
treatment
jurispruwill cause
think one's
conduct
Ifharm
dence
has been
as follows.3
in the
conduct
one when it won't.
Background for Lady Eldon’s Lace
prohibited
engages
The traditional treatment of mistakes in Anglo-American
jurispruharm
in), or causes the
by mistake (as to what conduct one is engaging
If one engages
dence
as follows.3
in the prohibited
conduct
been
lawhas
to avoid
one's
the
seeks
mistake
to
the
riskiness
of
(as
conduct),
by
to crime
what conduct one
is engaging
the harm
in), ortocauses
by mistake
unless(as
the
intent
then,
requires the specific
engage in the
to
avoid
one's
the law seeks
mistake
to
the
riskiness
of
(as
conduct),
by the harm, in which case a mistake
entails
particular conduct or cause
the
unless ofthesuch
crime
thetherefore
intent
to engage
then,absence
specific the
an requires
intent and
absence
of theinprothe
conduct
or
cause
in
mistake
entails
the
which
case
a
harm,
particular
if
one
excused
criminal
one's
mistake
is
from
hibited
conduct,
liability
an intent
and therefore
the absence
of theabout
the"reasonable".
absence of such
proif one makes
is
On the
other hand,
no mistake
if
one
excused
criminal
one's
is
from
hibited
conduct,
liability(and no mistake
is doing, or one's mistake is unreasonable
what one
specific
if one the
is "reasonable".
On then
the other
makes
no mistake about
one hand,
has violated
criminal
intent
is in
prohibition
required),
An Essay
35
of
Myke
Bayles
Memory
no specific
or one's
what one is doing, one
unreasonable
knewmistake
that
or was isnegligent
in not(and
knowing
regardless whether
then In
one
haswords,
intentconduct
is required),
violated
the criminal
prohibition
such
was illegal.
other
a mistake
- over
meaning
of receiving
stolen property6
offense
does the
not
result in
mitting the
knew law
that
or was
in notnoknowing
whether
regardless
of the one
criminal
is no excuse
matter how
or
existence
itselfnegligent
liability.
attempt
In be.4
such
conduct
was
other words, a mistake over the meaning
illegal.
mistake
reasonable
the
might has been severely criticized. The distincThe traditional approach
how
the criminal
law itself
nolaw
no matter
or existence ofmistakes
excuse
forfail
treated
underisthe
of attempts,
they
Inculpatory
it draws are often are
tions
and they
to
quitebe.4
confusing in application,
mistake
reasonable
the
an issue
has proven to be harmless or
might the conduct
become
only when
in
reflect real
differences
or dangerousness.
culpability
mistakes
are believed
law of attempts, for
treated under
the be.
the they
law
the actor
harmful than
it would
lessInculpatory
Traditionally,
the almost
For
recommended
mistakes,
exculpatory
apuniversally
or
an issue only
when
the conduct
has
tofactual
be harmless
become
and
proven
mistakes
of
treated
under
the
rubrics
has
inculpatory
legal
to
traditional
the
one
has
the
"elements
been
replace
proach
apthe
law
than
the actor believed
harmful
it
would
be.
less
Traditionally,
the
I
think
An
factual
mistake
impossibility.5
mistakenly
if and only if it negates
a mistakeinculpatory
the mensrea that
proach":
exculpates
and legal
mistakes
of factual
treated
the rubrics
has
- results
in
I point
inculpatory
when
itfor
at under
and
the
loaded
pull
you
trigger
gun
has
the
the is
element
of the
crime.7
required
particular
legislature
the
I
think
An
factual
mistake
impossibility.5
I
think
An
mistake
mistakenly
inculpatory
mistakenly
liability.
inculpatory
attempt
legal
An
in Memory
35
if the Myke Bayles
ForEssay
of X in
its definiexample,
-I am
in
results
whenofIlegislature
it atrequires
andknowledge
is
loaded
that
compoint
pull
I purchase
are
andthe
thus
you stolen
trigger
from
the
gun
you that
X doesn't
tiongoods
of the
belief
exist
mistake,
crime,
any
any
An inculpatory legal mistake - I mistakenly think
liability.
attempt
- does
- receiving
stolen
the offense
notinresult
will negate
-X inis
or not of
the property6
since
reasonable
belief
crime,
mitting
and thus that I am comstolen
the goods I purchase from
you are
3 See
127-33.
Criminal
Law
Dressier,
with
is
of
X.8
The
reform
here
Understanding
inconsistent
(1987):
generallyJ.
liability.
attempt
"knowledge"
4logically
141-44.
Id.,
The
has
been
criticized.
The
distinctraditional
more
rea
than
the
that
mens
severely
approach
requirements
really348-55.
nothing
recognition
3 Id.,
CriminalLaw (1987): 127-33.
SeeitgenerallyJ.
Dressier,
draws are
often Understanding
tions
and they fail to
quite confusing in application,
4
Id., 141-44.
reflect348-55.
real differences in culpability or dangerousness.
Id.,
mistakes, the almost universally recommended ap6 For
exculpatory
See People
v.Jaffe,185 N.Y. 497 (1906).
to
the traditional one has been the "elements ap7
J. Dressier,replace
proach
supranote 3, at 138-39.
8
if andtoonly
a
mistake
if it negates
mens
rea
that
if
recklessness
with respect
the existence
of X the
is what
the
proach":
exculpates
Similarly,
legislathen
defendant's
in
ture has required,
belief
-X
will
her
unless
she
has
for
the
the
element
of
the
crime.7
exculpate
required
particular
legislature
- X (she was aware of a substantial
was reckless in ifbelieving
the legislature
in unjustifiable
For
of X and
its definiexample,
requires
knowledge
See Model Penal Code
risk of
of recklessness).
(c) (definition
?2.02(2)
that X
tion ofX).the crime, any belief (MPC)
doesn't
exist mistake,
And if the legislature requires only negligence with respect to any
X, defendant's
is
not - will negate
thebelief
since belief in -X if the
reasonable
crime,
if
the
belief in -Xor will
is
not
exculpate only
negligent. Finally,
with
is
of
X.8
The
reform
here
inconsistent
of X a matter of strict liability
no mens rea
logically
legislature makes the existence "knowledge"
mental more
X - mens
then rea
defendant's
mistake
the with
(criminal
state) isthan
required
respect tothat
requirements
really
nothing
recognition
regardingthe existence of X is immaterial to her guilt under the statute.
The application of this approach to mistakes when the crime requires acting
with the "purpose"of producing X or engaging in X is not as straightforward.
6 See
185 N.Y. 497 (1906).
some
commentators
have suggested that defendant's belief in ~X
People
v.Jaffe,
Although
7 J. Dressier,
note
at 138-39.
or engage in X (see Note, 'Element Analysis in
supra
negates any purpose to 3,produce
8
if recklessness
with
to the
of X 681,
existence
is what
thethe
Criminal
Law
Review
35 (1983):
better
respect
Similarly,
legislaDefining
Liability',
Stanford
728),
has is
defendant's
in in-Xthe will
ture
belief
her even
unlessif she
that onethen
can have
a purpose
to X
criminal
law sense
one
required,
exculpate
analysis
- XFor
in believing
was
reckless
was aware
ofJackal
a substantial
and he
doesn't
believe
X will result.
if the
takes what
knows is a
(she
unjustifiable
example,
Seeshot
Penal Code
risk
Model
oneofin X).
1000
at DeGaulle,
he ?2.02(2)
will succeed
in hitting of
him
but believ(MPC)
(c) (definition
recklessness).
hoping
And
if
the
with
to X, defendant's
he
will
he
acts
with
criminal
For
if
he
hits DeGaulle
and kills
not,
requires
only
respect
legislature
negligence
ing
purpose.
in -X
will exculpate
belief
belief
is not
the
is surely purposeful.
homicide
will negligent.
heard toifclaim
him, the
Jackal
only if theThe
hardly be Finally,
makesthe
therequired
existence
of X amerely
matterbecause
of strict
nochances
mens rea
that he lacked
he liability
believed- his
of
legislature
purpose
L. Alexander, Law
and Philosophy :
(), pp. –

coming up with a satisfactory approach to inculpatory mistakes stem
from the following factors: (1) All attempts involve impossibility; that
is why they are attempts. Given the mismatch between defendant's
beliefs and the state of the world, she is bound to fail. As a consequence, when defendant's inculpatory beliefs are bracketed, the act of
attempting can always be given a quite harmless and innocent description. Attempts lack any distinctive actus reus.26(2) A mistaken belief
that one is doing something prohibited by the criminal law - no
matter what the source of the mistake - can reveal to an equal extent
factors relevant to punishability that successful criminal
any of the
An
45
Memorysuch
of Myke
Essay in reveal,
violations
as Bayles
culpability, dangerousness, willingness to
break the law, etc. Even the "dancing on Sunday" defendant, the one
motivation" approach); and (4)
switch the focus from defendant's
no one wants to deem punishable, has shown herself willing to be a
beliefs to the objective nature
of the act of attempting the crime (the
scofflaw, even if she displays no other antisocial trait. (3) Within the
"manifest criminality" approach).
of mistaken inculpatory beliefs,Background
there is no for
lineLace
April realm
I shall
Lady Eldon’s
nonarbitrary
both the traditional
and
also all of the
argue that
46between mistakes
of fact and mistakes of approach
law. (4) There
is aAlexander
Larry
justifiable
offered in its place are unsatisfactory. The difficulties in
approaches
reluctance to convict people
for attempting to violate laws that are
with
a satisfactory approach
to inculpatory
mistakeswhile
stem
up
coming
anfigments
unloaded
to
have
unconsented-to
intercourse
of their
gun,28
trying
imaginations.
from
the following
All attempts involve
factors:to
that
(1)
impossibility;
eimpotent,29
traditional
approach
inculpatory
mistakes
and shooting into an empty room where the intended
isA.why
are attempts. Given the mismatch between defendant's
Thethey
Traditional
victim
Approach
slept.30
and the
beliefsusually
state of the world, she is bound to fail. As a consePure legal
cases are
those where,
Under
the traditional
to inculpatory
law
distinimpossibility
mistakes, the to
Joshua
approach
when
defendant's
beliefs are according
of
bracketed, the
quence, between
inculpatory
Dressler's
"the
criminal
law
does
not
... act
formulation,
cases
of
factual
prohibit
[deguished can
pure
impossibility,
pure
legal
imposbe given a quite harmless and innocent descripattempting
always
conduct
or the result
that she Ahas
to achieve".31
Our
case
of pure
factual impossifendant's]
sought
sibility, and
hybrid
impossibility.
tion.
lack legal
distinctive
actus reus.26(2)
A mistaken
belief
Attempts
defendant
who
dances
to be
is a case
whereany
defendant
makes
a mistake
the
nature
hypothetical
dancing
thinking
illegal
bility
regardinglaw - no
that one is doing something prohibited by the criminal
in a legally
when
it is not
the examor
of has
the engaged
means chosen
to accomplish
theattempt
crime. of
Some
impossible
pure
46 efficacy
Alexander
- can reveal
matter
what the source
of the mistake
to anLarry
extent
equal
More
as
of
are
of
factual
include picking
variety.
problematic
examples
pureanlegal
impossibility
ples of the factors
impossibility
empty
pocket,27
firing
relevant
to punishability
that In
successful
criminal
any such as
cases
v.
v.
and
Wilson
State.3
defendant
Teal32
Teal,
an unloaded People
to have unconsented-to intercourse while
gun,28
trying culpability,
violations
such
to
reveal,
willingness
to
suborn
falseastestimony
on adangerousness,
matter
was
immaterial
attempted
and
an empty
into
room that
where
the
intended
impotent,29
shooting
break
the law,
etc.
Even
the
on
the
one
defendant,
"dancing
Sunday"
to26
the
that she wasThe
the (real) crime
believingthe
committing
Seeproceedings
victim
Robbins,
'Attempting
Impossible:
usually
slept.30
Emerging
no
one
wants to
deem punishable,
has shown
herselfConsensus',
toHarvard
be
willing that
ofJournal
The crime
ofare
thea
however,
onLegislation
23 (1986):
397.
perjury.
perjury,
required
suborning
377,
Pure
cases
those
to Joshua
where,trait.
impossibility
legal
according
if
even
she
no
other
antisocial
Within
the
scofflaw,
27
displays
(3) Wilson, the
v. Twiggs,
Cal.
be223
a material
in
455 (1963).
false
about
matter.
People
testimony
Similarly,
Dressler's
"the
criminal
law
does
not
... line
formulation, App.2d
prohibit
[derealm
of mistaken
there
is
no
beliefs,
inculpatory
nonarbitrary
defendant altered
anor
a check believing
that he was
immaterial
part
conduct
theand
result
thatof
she
to achieve".31
Our
fendant's]
between
mistakes
of fact
mistakes
of has
law.sought
is a justifiable
(4) There
The
of
crime
that the
however,
required
forgery.
committing
forgery,
who for
dances thinkingto dancing
to
be
hypothetical
illegal
reluctance
toof defendant
convict
violate laws that are
people
attempting
material
alteration
be
check.
partinof athe
is their
notahas
when it of
engaged
legally impossible attempt of the pure
figments
imaginations.
The principle
the
behind
treatment
of
impossibility
variety. More problematic as examples of pure
pure legal
impossibility are
legal
it
that
cannot
be
the
of
is
that
we
cannot
attempt
predicate
A.
Thesuch
Traditional
cases
as People
v. Teal32 and
v. State.3 In Teal, defendant
Wilsonliability
Approach
under
laws
that are purely
the
punish
people
figments
guilty
to
suborn
false
on
a
matter
that of
wastheir
immaterial
attempted
testimony
Under the traditional approach
to inculpatory
distinmistakes, the law of
Let
us
call
this
the
the
principle
component
imaginations.
dancing
to the proceedings
she
that
was
the
crime
(real)
believing
committing
between
cases
of
guished of legality, a reference
pure factual
impossibility,
pure
legal imposto our
of
someone
who
principle
example
of suborning
The
crime
of
that the
however, required
perjury.
perjury,
A case
sibility, and hybrid
legal to
impossibility.
pure factual
impossidances
Theofdancing
rests
prohibited.
principle
dancing
believing
be about
abematerial
in the
false istestimony
matter.
the
Wilson,
Similarly,
a
case
where
defendant
makes
a
mistake
nature
bilityon
regarding
not
concerns
about
or
after
all,
culpability
any
dangerousness
defendant
altered
an
a
check
that
immaterial
of
he
was
or efficacy of the means chosen topart
thebelieving
crime.
Some
examaccomplish
atofleast
the willingness
to be
scofflaws
those
it shelters have displayed
The crime
that the
however,
required
committing
forgery,
of factualforgery.
include
an
impossibility
picking
empty
pocket,27
-ples
more
consideration that there is no actualfiring
law
but on the
practical
a material
alteration
be of
part of the check.
defendant
with
to violate
and
no
actual
to charge
punishThe principle behind attempting
the treatment
of pure legal impossibility for
its attempted
violation. (Are - these
ment
inculpatory
prescribed
it
that
cannot
be
the
of
we cannot
attempt liability is that
predicate
26
thehave
See Robbins,
Harvard
Consensus',
like the
others
we
been The
or
'Attempting
Impossible:
Emerging
mistakes,
really
attempts,
discussing,
under
laws
that
are
the
of
their
punish
people 23 (1986):377, 397. purely
figments
guilty
onLegislation
Journal
27
Let
call
this 455
the (1963).
223us
Cal.
imaginations.
dancing principle component of the
Peoplev. Twiggs,
App.2d
a
of
reference
to our example of someone who
legality,
28 principle
Statev. Damms,9 Wis.2d 183 (1960).
29dances v.
to be
The dancing principle rests
765
184
Va.
prohibited.
dancing
believing
Commonwealth,
(1946).
Preddy
30not
on
concerns
about
or
170
v. Mitchell,
Mo.
633
State
(1902).
culpability
any
dangerousness - after all,
31 J.
at 352.
Dressier,
have3, displayed
at least the willingness to be scofflaws
those
it shelters
supra note
32 196 N.Y. 372
- but on the(1909).
more practical consideration that there is no actual law
33 85 Miss. 687
(1905).
with attempting to violate and no actual punishto charge defendant
ment prescribed for its attempted violation. (Are these inculpatory
mistakes, like the others we have been discussing, really attempts, or
L. Alexander, Law
and Philosophy :
(), pp. –
Statev. Damms,9 Wis.2d 183 (1960).
29
184 Va. 765 (1946).
Preddyv. Commonwealth,
30 Statev. Mitchell,170 Mo. 633
(1902).
31
J. Dressier, supra note 3, at 352.
28

32 196 N.Y. 372
(1909).
33 85 Miss. 687
(1905).