§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.



  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.



  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.



 



__________



§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).