This is what juries have always done in my lifetime; the judge always instructs them in the law. Always. No one gets to just make it up.
Every state and the Federal system have uniform jury instructions by which they instruct the jury; both sides can ask for deviance from the instructions, but that is seldom allowed.
If you don't like a verdict, appeal. You have the right.
Here's a sample instruction for the 'affirmative defense' of 'mistake of fact.'
14-5120. Ignorance or mistake of fact.1
An issue in this case is whether the defendant believed that __________________2. The burden is on the state to prove beyond a reasonable doubt that the defendant did not have an honest and reasonable belief in the existence of those facts at the time of the alleged conduct. If you have a reasonable doubt as to whether the defendant's alleged conduct resulted from a reasonable belief in those facts, you must find the defendant not guilty.
USE NOTES
1. If this instruction is given, add to the essential elements instruction for the offense charged, "The defendant did not [act] [fail to act] under a mistake of fact."
2. Describe what the defendant claims he or she believed.
[As amended, effective January 1, 1997; as amended by Supreme Court Order No. 16-8300-008, effective for all cases pending or filed on or after December 31, 2016.]
Committee commentary. —
When to give
A jury should be instructed on mistake of fact as a defense "when it negates the existence of the mental state essential to the crime charged." State v. Contreras, 2007-NMCA-119, ¶ 15, 142 N.M. 518, 167 P.3d 966. The jury instructions should be considered in their entirety to determine whether they adequately instruct on the requisite mental state. Id.
"Ordinarily, a defendant is not entitled to a specific instruction where the jury has already been adequately instructed upon the matter by other instructions." State v. Venegas, 1981-NMSC-047, ¶ 9, 96 N.M. 61, 628 P.2d 306 (upholding the district court's refusal to give the defendant's requested mistake of fact jury instruction because it was duplicative). See also State v. Nozie, 2009-NMSC-018, ¶ 36, 146 N.M. 142, 207 P.3d 1119, distinguishing Venegas, 1981-NMSC-047, ¶ 9 (explaining that it was unnecessary to decide whether a mistake of fact instruction, when given along with a proper instruction on the essential elements of the offense of aggravated battery upon a peace officer, would have been cumulative or superfluous because the jury had not been instructed that knowledge of the victim's status as a peace officer was an essential element of the offense). See also UJI 14-2211 NMRA.
Essential Element – Examples
Where the defendant was charged with aggravated battery upon a peace officer, an offense requiring knowledge of the victim's identity as a peace officer, the defendant was entitled to a mistake of fact instruction where a reasonable jury could have found that the defendant was in an intoxicated and disoriented state, and in such a state, he believed that the individual he attacked was the private security guard who had followed him from the supermarket parking lot. Nozie, 2009-NMSC-018, ¶¶ 34-35. (Note: UJI 14-2213 and UJI 14-2214 were amended in 2010 to be consistent with Nozie and add knowledge as an essential element to the offense of aggravated battery upon a peace officer.)
In a conviction for breaking and entering, where lack of permission is an essential element, the defendant was entitled to a mistake of fact instruction because sufficient evidence was presented that the defendant believed he had permission to enter the room: the defendant was very intoxicated, he paid for a room, and it could be reasonably inferred that he used the room as one that he paid for. Contreras, 2007-NMCA-119, ¶¶ 9, 11-12, 18.
Fundamental Error
In State v. Bunce, the Supreme Court held that if the defendant had offered a correct mistake of fact instruction as a defense to embezzlement, the district court's refusal to instruct the jury would have been in error. 1993-NMSC-057, ¶ 13, 116 N.M. 284, 861 P.2d 965. The Supreme Court further concluded that the defendant's offered mistake of fact instruction was inadequate because the jury could have convicted the defendant based on solely innocent conduct and reversed the defendant's conviction on the basis of fundamental error. Id. ¶¶ 14-15 (explaining the defendant's offered instruction would have required the jury to find the defendant not guilty if the defendant believed only that he was owed money, but that the pertinent question was not whether the defendant believed that he was owed money, "but [instead] whether the payments [received by the defendant] were intended to apply to the balance due or whether those payments were intended for some other purpose, such as the purchase and installation of materials").
[As amended by Supreme Court Order No. 09-8300-028, effective September 16, 2009; as amended by Supreme Court Order No. 16-8300-008, effective for all cases pending or filed on or after December 31, 2016.]
USE NOTES
ANNOTATIONS
The 2016 amendment, approved by Supreme Court Order No. 16-8300-008, effective December 31, 2016, updated the instruction to more accurately reflect the elements of ignorance or mistake of fact, revised the Use Notes, and rewrote the committee commentary; deleted "Evidence has been presented that" and added "An issue in this case is whether", after "the defendant did not", deleted "[act] [fail to act] under" and added "have", after "those facts", added "at the time of the alleged conduct", after "whether the defendant's", deleted "[action] [or] [failure to act]" and added "alleged conduct", after "resulted from a", deleted "mistaken" and added "reasonable", and after "belief", deleted "of" and added "in"; in Use Note 2, after "Describe", deleted "the facts constituting a mistake of fact" and added "what the defendant claims he or she believed".
The 2009 amendment, approved by Supreme Court Order No. 09-8300-028, effective September 16, 2009, in the committee commentary, deleted the former first sentence of the last paragraph and added the current first sentence of the last paragraph, but did not amend the jury instruction.
The 1997 amendment, effective January 1, 1997, substituted the language beginning "The burden" for language relating to the defendant acting or failing to act under an honest and reasonable belief in the existence of the facts, added Use Note 1, redesignated former Use Note 1 as Use Note 2, and deleted former Use Note 2 relating to giving bracketed alternatives.
Sufficient evidence for mistake-of-fact instruction. — Where defendant, who was very intoxicated, checked into a motel, paid for a room, was issued a key card without a room number on it, was assigned Room 125, entered Room 121 by breaking a window, and was found by the police using Room 121 as one for which had paid, the evidence was sufficient to support an instruction on mistake of fact. State v. Contreras, 2007-NMCA-119, 142 N.M. 518, 167 P.3d 966.
Mistake of fact common-law defense. — At common law, an honest and reasonable belief in the existence of circumstances which, if true, would make the act for which the person is indicted an innocent act was a good defense. State v. Gonzales, 1983-NMCA-041, 99 N.M. 734, 663 P.2d 710, cert. denied, 464 U.S. 855, 104 S. Ct. 173, 78 L. Ed. 2d 156 (1983).
Mistake of fact concept included in intent instruction involving mental state. — Whenever an intent instruction involving the defendant's mental state is given, the mistake of fact concept is automatically included and does not merit a separate instruction. State v. Griscom, 1984-NMCA-059, 101 N.M. 377, 683 P.2d 59.
Instruction given where evidence defendant believed fact that, if true, made conduct lawful. — To entitle himself to an instruction on mistake of fact, there must be some evidence that at the time in question, the defendant entertained a belief of fact that, if true, would make his conduct lawful. State v. Gonzales, 1983-NMCA-041, 99 N.M. 734, 663 P.2d 710, cert. denied, 464 U.S. 855, 104 S. Ct. 173, 78 L. Ed. 2d 156 (1983).
Defendant was entitled to a mistake of fact instruction on criminal sexual penetration charges. — Where defendant was charged with two counts of criminal sexual penetration (CSP), and where the state presented two theories to the jury, that defendant used physical force or physical violence without the victim's consent, or in the alternative, defendant knew or had reason to know that the victim did not have the capacity to consent to the alleged acts, and where defendant proffered a jury instruction on mistake of fact which was denied by the district court judge who concluded that the unlawfulness and elements instructions were sufficient, the district court erred in denying defendant's instruction, because, based on the jury given jury instructions, the jury was required to first consider the victim's state of mind and decide whether she consented to the alleged acts, and if she did not consent, the jury was required to view the evidence from defendant's perspective to determine whether the manner in which the victim expressed her lack of consent was so equivocal as to cause the accused to assume that the victim consented where, in fact, she did not, and when only the unlawfulness instruction is given, the jury could convict defendant of CSP even if it found that defendant honestly and reasonably but mistakenly believed that the victim consented to the use of physical force or physical violence. Defendant was entitled to an instruction on his mistake of fact defense because his mistaken belief would negate the intent necessary to convict him for using physical force or physical violence to penetrate a person who did not have the capacity to consent. State v. Apodaca, 2021-NMCA-001, cert. granted.
Defendant was entitled to a mistake of fact instruction on tampering with evidence charge. — Where defendant was charged with two counts of criminal sexual penetration (CSP) and tampering with evidence, and where the jury was instructed that defendant was guilty of tampering with evidence if the jury found beyond a reasonable doubt that defendant destroyed, changed, or hid blood evidence by cleaning the vehicle where the alleged CSP occurred, and where the district court, claiming that the unlawfulness and elements instructions were sufficient, denied defendant's proffered instruction on mistake of fact, the district court erred in denying defendant's instruction, because if the jury were to conclude that defendant, at the time that he cleaned the vehicle, had an honest and reasonable belief that the victim had the capacity to consent to the alleged sexual acts and did consent to defendant's actions, the jury could also reasonably conclude defendant necessarily lacked the intent necessary to convict him for tampering with evidence. State v. Apodaca, 2021-NMCA-001, cert. granted.
Instruction improper where evidence showed active "aiding and abetting." — In a prosecution for attempted murder, the defendant's tendered mistake-of-fact instruction, based on his "omission to act" did not correctly state the law applicable to the case, where the evidence showed that the defendant actively "aided and abetted" the crime. State v. Johnson, 1985-NMCA-074, 103 N.M. 364, 707 P.2d 1174.
Requested instruction on mistake of fact in bank robbery properly refused. — Where the defendant knew that another was going to rob the bank, went to the bank, not to stop the robbery, but with the purpose of preventing any shooting, a requested instruction on mistake of fact was properly refused. State v. Roque, 1977-NMCA-094, 91 N.M. 7, 569 P.2d 417, cert. denied, 91 N.M. 4, 569 P.2d 414.
As in embezzlement prosecution, defendant believed he was authorized to expend public funds. — The defendant is not entitled to a mistake-of-fact instruction in a prosecution for embezzlement for using public funds belonging to his employer to pay for the travel expenses of his spouse, who is not employed by the same employer and who has not performed any public service, on the ground that he believed in good faith he was owed money by his employer, where there is no evidence that he in fact believed he possessed the legal authority to expend public funds for his spouse's travel. State v. Gonzales, 1983-NMCA-041, 99 N.M. 734, 663 P.2d 710, cert. denied, 464 U.S. 855, 104 S. Ct. 173, 78 L. Ed. 2d 156 (1983).
Refusal of mistake-of-fact instruction in child abuse case is proper because criminal intent is not required to commit child abuse, and since the accused's mental state is not essential to the crime, mistake of fact would not be a defense thereto. State v. Fuentes, 1978-NMCA-028, 91 N.M. 554, 577 P.2d 452, cert. denied, 91 N.M. 610, 577 P.2d 1256.
Deficient instructions on mistake of fact. — Although the defendant offered an inadequate instruction on mistake of fact, the doctrine of fundamental error required reversal of the defendant's embezzlement conviction, since under the given instructions, the defendant could have been convicted for innocent conduct involving the application of certain payments towards the balance allegedly due him by the alleged victim. State v. Bunce, 1993-NMSC-057, 116 N.M. 284, 861 P.2d 965.
Law reviews. — For article, "Sufficiency of Provocation for Voluntary Manslaughter in New Mexico: Problems in Theory and Practice," see 12 N.M.L. Rev. 747 (1982).
For annual survey of New Mexico law relating to criminal law, see 13 N.M.L. Rev. 323 (1983).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law § 93.
Mistaken belief in existence, validity or effect of divorce or separation as defense to prosecution for bigamy, 56 A.L.R.2d 915.
Mistake or lack of information as to victim's age as defense to statutory rape, 8 A.L.R.3d 1100.
Criminal offense of selling liquor to minor or permitting him to stay on licensed premises as affected by ignorance or mistake regarding his age, 12 A.L.R.3d 991.
Mistake or lack of information as to victim's age as defense to statutory rape, 46 A.L.R.5th 499.
22 C.J.S. Criminal Law § 47.
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