6 ms·

> “ignorance of the law is no defense” only applies to the "natural" crimes like murder or theft. It really doesn't (at common law, at least). If you don't bel

by SEMW 13y ago

> “ignorance of the law is no defense” only applies to the "natural" crimes like murder or theft. It really doesn't (at common law, at least). If you don't believe me, try pleading ignorance of the law when you're arrested for breaching a traffic regulation. It's your responsibility to know the criminal law - however impractical that might be. There is a bit of leeway on the boundaries between mistake of law and mistake of fact -- e.g. in England, a tenant who destroyed something he'd installed himself, not knowing that under civil law it'd become the landlord's property, had his conviction for destruction of property quashed (R v Smith [1974] QB 354). And apparently in Canada there's a defence of "invincible mistake of law" in situations where it's literally impossible for the person charged with a crime to have known it was a crime at the time it was committed. But the general principle is that ignorance of the law is no defence to any crime, however 'unnatural'. IANAL.

lsiebert 13y ago
Part of the licensing requirements for a driver's license is learning about traffic regulations, so that isn't a helpful example for your argument.
- sergiosgc 13y ago
  Traffic regulations apply to everyone, not just drivers. Jaywalking, not using a seat belt are examples of infractions committed by non drivers.
s_q_b 13y ago
There are similar concepts in American law. Some crimes, (it used to be almost all crimes, now it's very few) require a particular state of mind, or mens rea. Mens rea, or "guilty mind", is a classic precept that goes all the way back to Roman law, and would have been considered an ordinary requirement for all criminal laws at the time the Constitution was written. Unfortunately, the Constitution was silent on the issue of mens rea, and the Supreme Court refused to create a universal mens rea requirement for all criminal cases under the due process clause. As a result, there are now a great deal of "strict liability" crimes, which don't require any ill intent on the part of the accused at all. For example, a car accident in some states, even absent negligence, can be grounds for felony charges. Prosecutors moved for this shift during the 70s-90s, since state of mind is so difficult to prove in court. In doing so, they overturned a precedent that goes back literally two millennia. What nobody realized was that mens rea was there for a reason, that it was difficult to prove by design. As a result we see lots of prosecutions for strict liability crimes that leave the defendant at a distinct disadvantage. The second defense that comes up in this context is vagueness. Since penal laws must be strictly construed in favor of the defendant, i.e. any ambiguity in interpretation open in the statute must be resolved in favor of the defendant, vague laws can be and are struck down as being void for vagueness. The theory here is not that the defendant did not bother to learn the law, it is that even if he had, the text of the law was insufficiently clear to give adequate notice to the defendant that his actions were illegal. The real problem here, however, has nothing to do with the mens rea requirement. The real problem is that we have de facto dispensed with the presumption of innocence. In today's justice system, it is not a conviction that ruins a person's life, it is the decision to merely to bring a charge. At the moment a felony charge is filed, before any determination of guilt has been made, the defendant may be incarcerated, for as long as nine years in some jurisdictions without violating the speedy trial requirement. All of his assets may be seized, before they have been proved to be involved in a crime of any kind. He will almost certainly be expelled from educational programs, usually with little or no due process, and lose his employment. All of this happens before any proof has been shown, any arguments have been heard, any witnesses have been questioned, any evidence has been challenged, and before the defendant has had the chance to utter any words other than "not guilty." The fact is, in today's American justice system, your life is effectively over at the mere pointing of a finger. The checks that were supposed to be the last line of defense, probable cause hearings before neutral magistrates and Grand Juries, similarly failed. Local magistrates often work hand-in-glove with the police, often in the same building, and since the probable cause standard is so low there is little obstacle to charging anyone for anything. In states that use Grand Juries, jurors often meet repeatedly with the same prosecutors, month after month. The prosecutor is the only one that can call witnesses, present evidence, make argument, and even testify. He can refuse to present exculpatory evidence and witnesses, and the defendant is not even present to respond. From this fact comes the common saying among prosecutors, "I could indict a ham sandwich for the murder of a pig." Most citizens are comforted by the notion, that no matter the unfairness in the initial process, eventually they will be able to present their case to a jury of their peers. However, even juries are no longer a right in most trials. Since the federal constitution's jury trial requirement was never incorporated against the states, most local magistrates are given the power to sentence defendants for up to six months in jail per count. Because most defendants face multiple charges stemming from the same conduct, there are countless American citizens spending years in jail, never having had their case heard by a jury. We've given prosecutors the unbridled power to destroy anyone by signing a piece of paper. Our justice system is just barely hanging on. Our rights still exist, but it's becoming impossible for an average citizen to effectively assert them. It's an interesting case to me. The decline of the legal system will be slow, and it's still far preferable to virtually any other system I've studied in detail, but it's scary to see it starting to happen. The system still functions well, in some areas, especially for the rich. But the new unchecked system, (advocates would call it "streamlined"), pioneered upon inner city black and hispanic minorities is gradually moving up-market. Remember when you think about policies that seem to only apply to others, like loosening criminal law requirements, sovereign immunity, rampant disregard for the warrant requirement in poor neighborhoods, vehicle checkpoints, and stop-and-frisk: once the precedents are set, there is nothing to keep the government from applying them to you.
- barries 13y ago
  Can't upvote enough because this is the single most troubling aspect of our (US) justice system today: as soon as you are charged, your quality of life is ruined unless you are both wealthy and lucky enough to avoid pretrial incarceration. Even if you are both wealthy and lucky, the stress, effort and money required only to be found "not guilty" or get charges dismissed is a huge burden. Even if there were redress for cases when "the system" makes a mistake, you can never get your quality of life back.
  - mahyarm 13y ago
    Unfortunately this seems like the trend internationally. It's just the justice systems in other countries just seem to be less aggressive, but have similar or even worse privileges. The human rights court for example in Canada is known as pretty much a kangaroo court. But Canadian law enforcement is not nearly as aggressive and militarized, and the country does not suffer from an as large historical SES gap that can cause this aggression to develop in the first place.
    - s_q_b 13y ago
      It's funny to hear that perspective from a Canadian. In comparative constitutionality, the prevailing scholarly opinion is that the Canadian Charter of Rights and Freedoms is a modern update to the US Bill of Rights. The United States Constitution has served as the template for countless founding documents, especially those written constitutional documents in most of the Commonwealth of Nations. The innovations in the Constitution were threefold. First, a federalist system in which states ceded only specific enumerated powers to a central government. Second, a balance of powers between three branches with differing missions, members, and procedures. Third, a specific list of tasks that fell explicitly outside the powers of the central government. These are commonly termed federalism, separation of powers, and the Bill of Rights. The federalism experiment failed, beginning with the establishment of true Federal supremacy following the Civil War and ending with the SCOTUS decisions that expanded the definition of "interstate commerce" to include virtually everything. The United States Federal government is for all intents and purposes now a government of general jurisdiction. This is what they have in e.g. Britain, so this is neither a good nor a bad thing, but it's simply no longer a differentiator from other modern governments. Separation of powers is failing us right now. Without controlling both houses of Congress, with a supermajority in the Senate, and the Presidency can accomplish any coherent agenda. Our third contribution, the Bill of Rights, is still holding relatively strong. Unfortunately, it's a few centuries old, and we've had to update it quite a bit by quite creatively reading rights into text where they might not really exist. So the search is on in academia for a bill of rights that's a better model for new documents than the United States version. The Canadian Charter of Rights and Freedoms is the most commonly examined alternative. And the Supreme Court of Canada is generally considered more activist than SCOTUS. So it's strange to hear that tribunal described as a kangaroo court. I'm not saying you're wrong, just wondering how the experience of an informed citizen differs from the prevailing winds in academia here. One thing that troubles me about the Canadian Charter of Rights and Freedoms is that it has an explicit escape clause to suspend it. In fact, I believe it was invoked two years ago during the student protests in Quebec. An off-button seems like a major anti-pattern for a bill of rights.
yuubi 13y ago
> try pleading ignorance of the law when you're arrested for breaching a traffic regulation That won't work for a mundane. However, if you're a cop, and you arrest someone under the pretext that it's for driving without a seat belt (max penalty $50 fine), judges might decide that your disregard of the law was mere ignorance and take that as an excuse. https://en.wikipedia.org/wiki/Atwater_v._Lago_Vista https://en.wikipedia.org/wiki/Atwater_v._Lago_Vista

by SEMW 13y ago

lsiebert 13y ago

Part of the licensing requirements for a driver's license is learning about traffic regulations, so that isn't a helpful example for your argument.

sergiosgc 13y ago
Traffic regulations apply to everyone, not just drivers. Jaywalking, not using a seat belt are examples of infractions committed by non drivers.

s_q_b 13y ago

There are similar concepts in American law. Some crimes, (it used to be almost all crimes, now it's very few) require a particular state of mind, or mens rea. Mens rea, or "guilty mind", is a classic precept that goes all the way back to Roman law, and would have been considered an ordinary requirement for all criminal laws at the time the Constitution was written. Unfortunately, the Constitution was silent on the issue of mens rea, and the Supreme Court refused to create a universal mens rea requirement for all criminal cases under the due process clause. As a result, there are now a great deal of "strict liability" crimes, which don't require any ill intent on the part of the accused at all. For example, a car accident in some states, even absent negligence, can be grounds for felony charges. Prosecutors moved for this shift during the 70s-90s, since state of mind is so difficult to prove in court. In doing so, they overturned a precedent that goes back literally two millennia. What nobody realized was that mens rea was there for a reason, that it was difficult to prove by design. As a result we see lots of prosecutions for strict liability crimes that leave the defendant at a distinct disadvantage. The second defense that comes up in this context is vagueness. Since penal laws must be strictly construed in favor of the defendant, i.e. any ambiguity in interpretation open in the statute must be resolved in favor of the defendant, vague laws can be and are struck down as being void for vagueness. The theory here is not that the defendant did not bother to learn the law, it is that even if he had, the text of the law was insufficiently clear to give adequate notice to the defendant that his actions were illegal. The real problem here, however, has nothing to do with the mens rea requirement. The real problem is that we have de facto dispensed with the presumption of innocence. In today's justice system, it is not a conviction that ruins a person's life, it is the decision to merely to bring a charge. At the moment a felony charge is filed, before any determination of guilt has been made, the defendant may be incarcerated, for as long as nine years in some jurisdictions without violating the speedy trial requirement. All of his assets may be seized, before they have been proved to be involved in a crime of any kind. He will almost certainly be expelled from educational programs, usually with little or no due process, and lose his employment. All of this happens before any proof has been shown, any arguments have been heard, any witnesses have been questioned, any evidence has been challenged, and before the defendant has had the chance to utter any words other than "not guilty." The fact is, in today's American justice system, your life is effectively over at the mere pointing of a finger. The checks that were supposed to be the last line of defense, probable cause hearings before neutral magistrates and Grand Juries, similarly failed. Local magistrates often work hand-in-glove with the police, often in the same building, and since the probable cause standard is so low there is little obstacle to charging anyone for anything. In states that use Grand Juries, jurors often meet repeatedly with the same prosecutors, month after month. The prosecutor is the only one that can call witnesses, present evidence, make argument, and even testify. He can refuse to present exculpatory evidence and witnesses, and the defendant is not even present to respond. From this fact comes the common saying among prosecutors, "I could indict a ham sandwich for the murder of a pig." Most citizens are comforted by the notion, that no matter the unfairness in the initial process, eventually they will be able to present their case to a jury of their peers. However, even juries are no longer a right in most trials. Since the federal constitution's jury trial requirement was never incorporated against the states, most local magistrates are given the power to sentence defendants for up to six months in jail per count. Because most defendants face multiple charges stemming from the same conduct, there are countless American citizens spending years in jail, never having had their case heard by a jury. We've given prosecutors the unbridled power to destroy anyone by signing a piece of paper. Our justice system is just barely hanging on. Our rights still exist, but it's becoming impossible for an average citizen to effectively assert them. It's an interesting case to me. The decline of the legal system will be slow, and it's still far preferable to virtually any other system I've studied in detail, but it's scary to see it starting to happen. The system still functions well, in some areas, especially for the rich. But the new unchecked system, (advocates would call it "streamlined"), pioneered upon inner city black and hispanic minorities is gradually moving up-market. Remember when you think about policies that seem to only apply to others, like loosening criminal law requirements, sovereign immunity, rampant disregard for the warrant requirement in poor neighborhoods, vehicle checkpoints, and stop-and-frisk: once the precedents are set, there is nothing to keep the government from applying them to you.

barries 13y ago
Can't upvote enough because this is the single most troubling aspect of our (US) justice system today: as soon as you are charged, your quality of life is ruined unless you are both wealthy and lucky enough to avoid pretrial incarceration. Even if you are both wealthy and lucky, the stress, effort and money required only to be found "not guilty" or get charges dismissed is a huge burden. Even if there were redress for cases when "the system" makes a mistake, you can never get your quality of life back.
- mahyarm 13y ago
  Unfortunately this seems like the trend internationally. It's just the justice systems in other countries just seem to be less aggressive, but have similar or even worse privileges. The human rights court for example in Canada is known as pretty much a kangaroo court. But Canadian law enforcement is not nearly as aggressive and militarized, and the country does not suffer from an as large historical SES gap that can cause this aggression to develop in the first place.
  - s_q_b 13y ago
    It's funny to hear that perspective from a Canadian. In comparative constitutionality, the prevailing scholarly opinion is that the Canadian Charter of Rights and Freedoms is a modern update to the US Bill of Rights. The United States Constitution has served as the template for countless founding documents, especially those written constitutional documents in most of the Commonwealth of Nations. The innovations in the Constitution were threefold. First, a federalist system in which states ceded only specific enumerated powers to a central government. Second, a balance of powers between three branches with differing missions, members, and procedures. Third, a specific list of tasks that fell explicitly outside the powers of the central government. These are commonly termed federalism, separation of powers, and the Bill of Rights. The federalism experiment failed, beginning with the establishment of true Federal supremacy following the Civil War and ending with the SCOTUS decisions that expanded the definition of "interstate commerce" to include virtually everything. The United States Federal government is for all intents and purposes now a government of general jurisdiction. This is what they have in e.g. Britain, so this is neither a good nor a bad thing, but it's simply no longer a differentiator from other modern governments. Separation of powers is failing us right now. Without controlling both houses of Congress, with a supermajority in the Senate, and the Presidency can accomplish any coherent agenda. Our third contribution, the Bill of Rights, is still holding relatively strong. Unfortunately, it's a few centuries old, and we've had to update it quite a bit by quite creatively reading rights into text where they might not really exist. So the search is on in academia for a bill of rights that's a better model for new documents than the United States version. The Canadian Charter of Rights and Freedoms is the most commonly examined alternative. And the Supreme Court of Canada is generally considered more activist than SCOTUS. So it's strange to hear that tribunal described as a kangaroo court. I'm not saying you're wrong, just wondering how the experience of an informed citizen differs from the prevailing winds in academia here. One thing that troubles me about the Canadian Charter of Rights and Freedoms is that it has an explicit escape clause to suspend it. In fact, I believe it was invoked two years ago during the student protests in Quebec. An off-button seems like a major anti-pattern for a bill of rights.

yuubi 13y ago

> try pleading ignorance of the law when you're arrested for breaching a traffic regulation That won't work for a mundane. However, if you're a cop, and you arrest someone under the pretext that it's for driving without a seat belt (max penalty $50 fine), judges might decide that your disregard of the law was mere ignorance and take that as an excuse. https://en.wikipedia.org/wiki/Atwater_v._Lago_Vista https://en.wikipedia.org/wiki/Atwater_v._Lago_Vista