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Is Ignorance of the Law a Real Defense? – New Hampshire Magazine – October 2017

Claiming you didn’t know the law may not protect you.




Is Ignorance of the Law a Real Defense?

A knowledgeable citizenry is the foundation of a civilized democracy. Without it, the community can’t make wise decisions and weigh the individual or collective consequences of their choices. Laws are designed to conform to a widely agreeable community standard and scare into submission those who violate it knowingly or unknowingly. This concept sits on a foundation of presumed knowledge dating back to the Romans: Ignorantia juris non excusat.  Translated from Latin: Ignorance of the law excuses not. Aristotle’s assertion on the topic is more of a warning: “Nobody is thought to be ignorant of the law.” 

In New Hampshire courts, ignorance of the law is a rare defense, says Randy Hawkes, executive director of the state’s nonprofit criminal defense program, NH Public Defender. “Who’s going to say that [as a defense]? There is not much sympathy.”

A much bigger culprit that seems to garner greater sympathy is society’s obvious ills. Franklin District Court Judge Ned Gordon said in a NH Bar Association magazine profile, “Alcohol is the river that runs through my courtroom.” Both criminal defense attorneys and prosecutors say that it’s not just alcohol that impacts the state’s judicial and penal system; it’s also drugs, mental health and other factors that impair judgment. If it weren’t for these things, said Coös County Attorney John McCormick, “we wouldn’t need an office.”

On the rare occasions when the “ignorance excuse” has been used, it didn’t turn out to be a successful defense.

One of the best known federal cases was that of a gullible federal income tax protestor named John Creek who refused pay his taxes for several years because he trusted a fringe anti-income tax group theory that the federal income tax did not apply to him and was unconstitutional. Creek, a commercial airline pilot who represented himself in court, said he had sincerely believed wages were not income and that he was not a “person” as defined by the Internal Revenue code.

Convicted in a lower court, Creek appealed to the US Supreme Court arguing that the jury instruction did not consider his defense that he lacked willful criminal intent. The top court took up the task of defining statutory willfulness as it relates to the IRS code, and the case ended in a split decision that drew a line of distinction between true ignorance and deliberate ignorance. According to the court, true ignorance of the tax law is a defense only if the ignorance is not deliberate, meaning juries need to weigh this question of willful ignorance when considering a verdict. Creek earned a victory with his case, but it was short-lived: A later trial convicted him and sent him to prison for tax evasion.

There have been several local cases where defendants attempted to use the ignorance defense, including one where a person whose driving privileges were revoked thought it was lawful to drive in a local stock car race on private property. Randy Riendeau, a Cornish resident, participated in a “spectator race” open to nonprofessional drivers at a local speedway. After the race, Riendeau drew attention to himself by creating a “smoke show,” an act prohibited by the speedway that causes a cloud of exhaust smoke by spinning tires.

The commotion drew the authorities, who then noticed the smell of alcohol and his slurred speech. Charged with driving after being certified as a habitual offender and with one count of driving while intoxicated, the trial centered around the definition of a public “way” and whether Riendeau understood that definition. The defense argued that the speedway’s parking, staging area and track were not public and that, even if they were, their client didn’t know it. The court disagreed, asserting that the habitual offender classification provides ample notice and explanation as to Riendeau’s prohibition from driving anywhere. The only question to be determined was whether the surface that the accused drove on was defined by New Hampshire law as a “way.” The state Supreme Court determined that it was, and he was convicted.

Another interesting case involved two Concord police officers who brought erroneous charges against a Concord man for sending harassing emails to his ex-girlfriend, whose father and uncle happened to be veterans of the local police department. Because the police thought the harassment happened within the past 12 hours, they believed they had the authority to arrest the man without a warrant. The statute they cited was previously ruled unconstitutional, and the charges were dropped. The man sued the Concord Police Department for malicious prosecution and negligence, among other offenses. The state Supreme Court, while acknowledging that the “officers may have acted negligently,” granted immunity to the police. The court said, “The public cannot afford for those individuals charged with securing and preserving community safety to have their judgment shaded out of fear of subsequent lawsuits or to have their energies otherwise deflected by litigation.”

In these cases, the court leaned toward the public interest over the individual’s rights. They seemed to shy away from setting a broad policy precedent.

Sometimes “justice to the individual is rightly outweighed by the larger [public] interests,” said US Supreme Court Justice Oliver Wendell Holmes. “There are many cases in which the criminal could not have known that he was breaking the law but to admit the excuse at all would be to encourage ignorance.”

While ignorance of the law is no excuse, unclear laws can be a defense in and of themselves — but that’s a difficult hurdle to clear.

“Just as the law presumes that all citizens know the law, the law assumes that the government has written the law with sufficient clarity to put people on notice as to what it requires,” says attorney Gilles Bissonnette, of the NH American Civil Liberties Union. Otherwise, people will not know how to conform their behavior to the law.  Moreover, he says, “vague and ambiguous laws vest tremendous discretion in government officials, as these officials can then enforce these laws using arbitrary and discriminatory decision-making.”

How the Law Office of Scott A. Ferris, P.A. Can Help

If you, a friend or a family member find themselves in a situation such as this, please call the Law Office of Scott A. Ferris, P.A. at 305 670-3330 right away. Scott A. Ferris, Esq. is a licensed criminal defense attorney who has been practicing law since 1987. He is available whenever you need him to defend your rights. Please learn about our firm at

 Republished by the Law Office of Scott A. Ferris, P.A.

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