firearm and thus a mistake of fact regarding the character
of the weapon could never constitute a defense.
Defendant has no defense of mistake of fact where the
particular type of substance possessed is irrelevant for
conviction of possession of a controlled dangerous
substance, but only relevant for grading of the offense,
and where defendant believed the substance possessed
was a different controlled dangerous substance than it
actually was. State v. Edwards, 257 N.J. Super. 1 (App.
Div. 1992).
C. Ignorance Due To Unavailable Law Or Misplaced
Reasonable Reliance On Misstatement Of the Law
Ignorance of the law excuses conduct which would
otherwise be criminal if the statute outlining the offense
is unknown to the defendant, has not been published or
otherwise reasonably made available, and the actor
reasonably believes that such conduct is lawful. N.J.S.A.
2C:2-4c(1).
A defendant’s conduct may also be excused if he acts
in reasonable reliance upon an official statement of the
law which subsequently turns out to be invalid or
erroneous. The defendant must establish that he did not
believe his conduct was unlawful.
The mistake defense may also be utilized where a
defendant has diligently pursued all available means to
ascertain the meaning and application of the offense to his
conduct and honestly and in good faith concludes his
conduct is not a violation of the law. N.J.S.A. 2C:2-
4c(3). This provision expands the availability of the
defense and is a substantial departure from the common
law.
The defense of mistake of law is inapplicable where
there was no clear statement of law relied upon by
defendants which was subsequently determined to be
invalid or erroneous. The defendants’ reading of a single
applicable court opinion was insufficient to constitute
clear and convincing evidence to demonstrate diligent
investigation of the law as required to claim the defense
of ignorance of the law. State v. Guice, 262 N.J. Super. 607
(Law Div. 1993).
Where the language of the statute at issue was neither
vague nor unclear, there is no question of a defendant
“diligently pursu[ing] all means available to ascertain the
meaning and application” of the statute and the defense
of mistake of law was not an issue for the jury to consider.
State v. Grimes, 235 N.J. Super. 75 (App. Div.), certif.
denied, 118 N.J. 222 (1989).D. Procedural Issues and Burden of Proof
Where the defendant introduces evidence of a
mistake of fact which, if believed, would negate an
element of the offense, he has no burden to prove the
defense. The State, however, need not disprove the
defense beyond a reasonable doubt. The State’s burden
is to prove each element of the offense, including the
requisite mental state, beyond a reasonable doubt. State
v. Sexton, 160 N.J. 93 (1999).IV. DURESS
A. Generally
N.J.S.A. 2C:2-9 provides that it is an affirmative
defense to a crime where the actor engaged in the conduct
because he was coerced to do so by the use of, or threat to
use, unlawful force against his person or that of another.
The standard is objective, i.e., whether a person of
reasonable firmness in the accused’s situation would have
been unable to resist. State v. Toscano, 74 N.J. 421, 443
(1977). While the accused’s “situation” excludes the
idiosyncracies of the individual’s temperament, it
permits the jury to consider his “attributes,” such as the
accused’s age, health, etc. Id. Elements to consider in
assessing the viability of the defense include the nature of
the threat, its immediacy and gravity; the seriousness of
the crime committed; the identity of the person
endangered; the possibility of escape or resistance; and
the opportunity to avoid the act by seeking official
assistance. Id.Several limitations have been placed on this defense.
It is unavailable if the actor recklessly placed himself in a
situation in which it was probable that he would be
subjected to duress; it is also unavailable if the actor was
criminally negligent in placing himself in such a
situation, whenever criminal negligence suffices to
establish culpability for the offense charged. N.J.S.A.
2C:2-9b. While the defense is available in a prosecution
for murder, duress, if established, will only serve to
reduce the crime to manslaughter. N.J.S.A. 2C:2-9b.The Code abolishes the common law presumption
that criminal acts performed by a married woman in the
presence of her husband were coerced. N.J.S.A. 2C:2-9c.Motor vehicle violations are not offenses under the
Code so that Code defenses are not applicable. Common-