Criminal Law

Felony

A crime punishable by a year or more of incarceration

Misdemeanor

A crime punishable by a year or less of incarcerations

Mochan and common law crimes

Common law used to sometimes be enforced in the absence of a statute. Ex. Commonwealth of Pennsylvania v. Mochan: lewd behavior, court found common law sufficiently broad to punish any act which directly injures or tends to injure the public or pervert justices. Today common law crimes are abolished in most states.

Why legislatures should make criminalization decisions, as opposed to courts?

Democracy argument: legislatures more likely to be elected and on shorter terms, answer to the public and give the people a voice

Notice argument: people have right to know that something is a crime before they commit it

Nullum cirmen sine lege

There is no crime without law. No crime without a statute defining an act as a crime

Morisette v. US

Example of the court reading in a mens rea requirement.

Morisette convicted for stealing government property after taking spent shell casings and seeking them. Court held deep common law roots of mens rea so read in mens real requirement which was negated by abandonment defense.

What is common in strict liability offense that are meant not to have a mens rea requirement?

Supported by Behrman and Balint

1. Analyzing statute, not specific case, for:

2. Health, safety, and welfare (public welfare offenses)

3. Light penalty (if it is a felony, likely to read in intent)

4. Newer crimes (not offenses at common law, as opposed to Morisette)

5. Less stigma

6. Omissions or neglect

7. Risk of injury (rather than an actual injury)

8. Defendant could prevent harm and it is reasonable to expect this of the defendant

9. Usually malum prohibitum (wrong because prohibited)

not malum in se (inherently, obviously wrong)

Types of elements

Actus reus (including causation and result), mens rea, attendant circumstance

MPC: Voluntary Act

MPC § 2.01

(1) A person is not guilty of an offense unless his lability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable

(2) The following are not voluntary acts within the meaning of this section

(a) A reflex or convulsion

(b) A bodily movement during unconsciousness or sleep

(c) Conduct during hypnosis or resulting from hypnotic suggestion

(d) A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual

State of AZ v. Alvarado

Held omission of disclosing that he had marijuana on him was a voluntary act and was convicted of bringing contraband into a correctional facility after being arrested for marijuana possession. Declined to follow Tippets.

Tippets (OR)

Held that bringing contraband into jail upon arrest is not voluntary.

5th and 14th amendment of the US constitution

No person shall be "Deprived of life, liberty, or property, without due process of law"

What does due process require of a criminal statute?

1. Provides a person of ordinary intelligence, fair notice of what is prohibited

2. Establish minimal guidelines to govern law enforcement

Papachristou v. City of Jacksonville

SCOTUS struck down Jacksonville vagrancy ordinance finding void for vagueness. Found that it both failed to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute AND that it encourages arbitrary and erratic arrests and convictions.

City of Chicago v. Morales

Found Chicago vagrancy ordinance void for vagrancy. Said it may authorize and even encourage arbitrary and discriminatory enforcement. Some thought unconstitutional on the first prong too of failing to provide the kind of notice that will enable an ordinary person to understand what conduct it prohibits.

Dissent: was not loitering that was criminalized, it was failure to disperse when told to.

Facial challenge

Not about specific case, but about the text of the law only.

Ex. Void for vagueness, reading in mens rea

Police discretion

Broad authority to or not to enforce criminal laws.

Prosecutorial decisions

Broad authority on whether to bring charges (Attica)

Broad discretion on what to charge (Batchelder, Cissell)

Inmates of Attica

Plaintiffs alleged that state officials failed to arrest, investigate, prosecute officers who violated their civil rights during prison revolt. Even though the statue included seemingly mandatory language, court held that even mandatory statutory language that appears to require prosecution "has never been thought to preclude the exercise of prosecutorial discretion"

US v. Batchelder

SCOTUS: overlapping criminal statutes with different penalty schemes do not violate the constitutional right to equal protection or due process. Unless prosecutor based criminal charges on impermissible grounds such as the defendant's race or religion

State of WI v. Cissell

WI overlapping felony abandonment and misdemeanor of failure to support. Court found substantially identical elements. Held Batchelder applies to identical statutes too, prosecutor free to use discretion to charge either felony or misdemeanor. High bar to show based decision on discriminatory reason.

Dissent (Abrahamson): legislature is meant to have the rest to set offenses, should not give executive branch this power

What does a prosecutor need to charge?

Probable cause

Definitions vary

"Reasonable ground for belief in guilt (Brinegar)

"Kind of fair probability on which reasonable and prudent people, not legal technicians act" (Harris)

"Incapable of precision definition or quantification...depends on totality of the circumstances" (Pringle)

May consider likelihood that would be convicted under jury standard of BARD

- Once threshold for probable cause is met, choice of whether and what charges to bring is a matter of prosecutorial discretion

Standard of proof at criminal trial

Proof BARD. Burden is on the prosecution. This is the burden of persuasion

In re Winship

BARD is constitutionally required by the due process clause and applies to juvenile cases as well. BARD is a bedrock indispensable principle: criminal conviction carry's with them stigma and often loss of liberty, legitimacy to the public.

Concurrence, Harlan: far worse to convict an innocent person than to let a guilty one go free.

In re Gault

Full due process rights are not afforded to juveniles. Due process does require the essentials of due process and fair treatment.

Reasoning: juvenile system is meant to be different, less adversarial, and work more to aid than to punish

Evidentiary standards of proof (lowest to highest)

Probable cause

Preponderance of evidence (more likely than not - >50.1%)

Clear and convincing evidence (highly likely)

Proof BARD (not absolute certainty, jurors can only have very minor doubts that are grounded in reason or common sense)

How is a challenge to legally sufficient evidence at trial viewed?

This is a question for the judge, not the jury. Defense can raise it as a judgment of acquittal or of dismissal after the prosecution has presented their case.

Judge views the evidence in the light most favorable to the prosecution and asks if a reasonable fact-finder could convict the defendant. If judge believes all of the evidence of the prosecution would they have sufficient evidence to convict.

Has prosecution met their burden of production?

Some evidence for each element

Prosecution can appeal judgment of acquittal for legally insufficient evidence, but cannot appeal jury acquittal

Legally sufficient evidence on appeal

No new facts, just review of evidence at trial. Appellate court views evidence in the light most favorable to the prosecution and the verdict at trial.

Owens v. State of Maryland

Convicted of driving while intoxicated after being found in driveway. Argued evidence at trial was not legally sufficient to show that he had actually driven. Court evaluated the burden of production and found sufficient circumstantial evidence for this element

Charge and Sentence bargaining

Strategies used prosecutors to get guilty pleas. Over 90% of convictions are from guilty pleas, not trials.

Charge: which crime will the person plead guilty to

Sentence: plead in exchange for what sentence recommendation?

What does a person waive when they take a guilty plea?

Constitutional right to a jury, to remain silent, to confront accusers.

Boykin v. Alabama: Guilty plea must be voluntary and knowing and must sign off that waiving these rights

Bordenkircher v. Hays

SCOTUS

Takeaway: Prosecutor can threaten harsher penalties, this is still voluntary, unless discriminatory intent (almost impossible to prove)

Facts: Hays was accused of forging a check for $88, prosecution offered 5 years for a guilty plea, threatened that if he didn't plead guilty they would seek life sentence under a habitual offender act. Was convicted and sentenced to life

Also: guilty plea is still voluntary if it is taken because the death penalty is threatened

Textualist approach to statutory interpretation

Look only at the statutory text itself

Scalia: "the text is the law and it is the text that must be observed"

Intentionalist/purpovist approach

Look at the legislative intent/purpose behind the law.

Eskridge: "text and purpose are like two blades of scissors; neither does the job without the operation of the other

Plain/ordinary meaning in statutory interpretation

Kagan dissent in Yates: When congress has not supplied a definition, we generally give a statutory term its ordinary meaning

- Dictionary definition

- What would an ordinary or reasonable person understand the term to mean

- Special cases: technical terms, words with well-established common law means (ex. "felonious taking in People v. Williams)

Esjudem generis

"of the same type"

Narrow a general term at the end of the list by looking at the specific examples that precede it

Noscitur a sociis

"A word is known by the company it keeps"

Look at evidence in the paragraph, statute, title, chapter, etc.

US v. McDonnell: Crime for a public official to accept bribery in exchange for being influenced in the performance of any official act. Official act was defined as any decision or action on any question, matter, cause, suit, proceeding, or controversy.

- The court concluded that official act must mean a formal exercise of government power.

Canon against surplusage

Should not interpret any provision in a way that would render it or another part of the statute inoperative or redundant.

Bailey v. US: Interpreting the phrase "uses or carries a firearm"

- "Use" could not just mean possession because this would undermine the word "carries"

Legislative history

Consider committee reports, sponsor statements, amendments, etc.

Eskridge: should make a difference that the statue was enacted seeking to solve a certain social problem

Ask what would a reasonable person intend this specific language to accomplish?

Rule of Lenity

If all legitimate tools of statutory interpretation have been exhausted and there is still ambiguity err towards no conviction.

Yates v. US

SCOTUS

Statutory interpretation of the term "tangible object" to determine if a fish is included in the definition.

Used legislative history, canon against surplusage, ejusdem generic, noscitur a soccis to determine that a fish does not count, meant for documents shredding and corporate fraud.

Kagan Dissent: Plain and ordinary meaning, cited Dr. Seuss that a fish is tangible. Countered legislative history (this can be controversial)

6th Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Blanton: no right to jury for petty crimes, punishable by 6 months or less in prison

Ramos v. Louisiana

Non-unanimous jury verdicts are unconstitutional under the 6th amendment. Louisiana and Oregon were the only two states that allowed 10-2 jury verdicts. Oregon now applies retroactively, Louisiana does not (Edwards)

Stages of jury selection

1. master jury wheel 2. qualified jury wheel 3. Jury venire 4. Petit jury

Taylor v. Lousiana

Fair cross section in jury selection is required.

Jury wheels, pools, panels, venire must not systematically exclude groups of the community and thereby fail to be reasonably representative.

Voir dire

Process of questioning and striking prospective jurors.

Two ways to strike

1. for cause: unlimited number for inability to perform, bias, etc.

2. peremptory: limited number depending on statute, broad reasoning allowed

Batson v. Kentucky

Unconstitutional under equal protection to strike based on race.

Powers v. Ohio: white defendants can raise Batson challenge

Georgia v. McCollum: prosecution can raise Batson challenge

JEB v. Alabama: Also unconstitutional to strike based on gender

Batson test for if strike violates Equal Protection

1. Party raising must make out prima facie case of discriminatory selection

2. Opposing party can offer race or gender neutral explanation of strike

3. Judge decides if proven purposeful discrimination

Not difficult to fabricate a reason, hard to prevail on Batson challenge

Foster v. Chatman: Attorney note showed clear bias by race (this is uncommon)

By trespass

without the property owner's consent

Possession vs Title

Possession: having immediate control over property

Title: being recognized as the owner of the property by law

Larceny at common law

Taking, by trespass, and carrying away (asportation), the property, of another, with intent to permanently deprive the owner of possession

Larceny by trick at common law

Taking, by fraud (as a form of trespass), and carrying away (asportation), the property, of another, with intent to permanently deprive the owner thereof

Robbery at common law

Larceny, by force

Embezzlement at common law

While in the possession of the property, of another, converting that property to personal use, by fraud

False Pretenses at common law

Acquiring title, to the property, of another, by fraud

Burglary at common law

Breaking and entering, a dwelling, of another, at night, with intent to commit a felony inside

Breaking: originally required physical force, but not necessarily property damage, evolved to include "constructive breaking" (entry by fraud)

Modern trends in theft offenses

- consolidation into a single theft statutes

- broaden scope: theft of services, larceny of intangible things

- Gotten ride of asportation and intent to permanently deprive

- Burglary: removed at night, breaking satisfied by any trespassers entry, dwelling edited to cover other buildings/vehicles

People v. Williams

"Felonious taking" was a common law phrase that meant larceny. Was included in CA robbery statute

Williams conduct was theft by false pretenses (got title to gift cards through fraud), not larceny so cannot be guilty of robbery

State v. Donaldson

Donaldson charged with theft after running from van he was hot wiring.

Iowa replaced common law elements of caption and asportation with possession and control.

Court found sufficient evidence for guilty verdict because he intended to deprive the owner thereof and exercised control over the van.

MPC: Theft by unlawful taking or disposition

MPC § 223.2

(1) Movable property: A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof

(2) Immovable property: a person is guilty of theft if he unlawfully transfers immovable property of another or any interest therein with purpose to benefit himself or another not entitled thereto

State v. Siegel

Hallmark of embezzlement is that one first obtains property of another lawfully, and then forms the intent to convert that property to person use.

Here, UCF student was permitted to use laptop owned by the school, but then decided to keep it for his own use.

Mistake of fact defense to larceny

Mistake of fact defense can be valid if it negates the specific intent, mens rea of the offense

US v. Coffman

Marine took gear he believed was abandoned, was convicted of larceny, appellate court held should have been informed of mistake of fact defense and the significance of abandoned property.

If believed was abandoned could not have had the specific intent to deprive the owner of its use.

How much force is needed to constitute robbery?

Majority rule: a person must exert more force than that necessary to just slide away the object they are attempting to rob.

State v. Sein: Took purse from woman, no evidence he used any force other than that required to slide purse from beneath woman's arm.

- Both majority and dissent used legislative history (controversial)

People v. Patton: simple snatching r sudden taking oof property does not itself involve sufficient force to constitute robbery

Minority: Any force is sufficient, act of taking is almost always robbery

Good faith claim of right defense to larceny

Can negate larcenous intent in certain thefts

Majority rule: not defense to robbery or extortion which involve threat of force

- State v. Reid: Reid and another demanded money be honed over at gun point. Riddles grabbed woman, forced into car demanded money.

Some states recognize good faith claim of right defense to robbery, at least for chattel rather than cash

Fifth amendment

Double jeopardy: No person shall be subject for the same offense to be twice put in jeopardy of life or limb.

State constitutions often have own double jeopardy clause.

Defendant cannot be tried or punished for the same offense more than once.

Double jeopardy bars:

Second prosecution for the same offense after acquittal

Second prosecution for same offense after conviction

Multiple punishments for the same offense

- State v. Begaye:

Convicted of burglary and breaking and entering. Court used Blockburger test to find that each offense contained an element that the other did not so both connections not barred by double jeopardy

Blockburger test

What counts as the same offense for purposes of double jeopardy:

Does each crime contain an element that the other does not?

- Yes: two crimes are not the same offense

-No: the two crimes are the same offense

If all the elements of one offense are also elements of another, the first is a "lesser included offense" and both cannot be charged under double jeopardy

Ex. Larceny is lesser included crime of robbery

Battery at common law

Intentional, offensive (unwanted), use of physical force, against another person

Must be some physical contact, but could be minor, can be with object

Covers wide range of conduct, ex. from shoving to stabbing

Assault at common law

1. Attempted battery (no physical contact required, ex. swing and a miss)

2. Threatened battery (threaten imminent use of force, causing the victim to reasonably fear that force will imminently be used)

Homicide at common law

1. Murder: killing with malice aforethought (no degrees)

Established in 1 of 4 ways

- intent to kill

- intent to cause grave bodily injury

- extreme recklessness (killing with a "depraved heart")

- Felony murder: committed during the course of any felony

2. Manslaughter: killing without malice aforethouht

- intentional killing that fall within "adequate provocation" doctrine

- Killings with ordinary recklessness

- Killings committed during certain misdemeanors

Adequate provocation doctrine at common law

Partial defense which bumped murder to manslaughter

Defendant must show:

1. actually provoked to kill

2. provocation would cause a reasonable man to become sufficiently inflamed to kill

3. No cooling off period

Main categories that were recognized: infidelity, physical attack, threat to child or spouse

Modern Trends: Assault

- Combine common law offense of battery and assault into one statute

- Distinguish between major and minor assaults

ex. aggravated (causing serious injury) assault with a deadly weapon

General intent assault/battery crimes

Do not need intention to cause a particular result, just intent to do the act that constitutes assault/battery

State v. Dorn: Statute required "intentional infliction of great bodily harm" (general intent)

- Court held that did not need to intend to cause great bodily harm, just intent to push the victim which then did result in great bodily harm when he fell into a fire

Omission liability

Theory of liability, still just charged with target crime.

Failure to act can be basis for criminal liability only where the omission violated a clear legal duty.

Sources of a legal duty to act:

- A statute (ex. duty to assist statutes)

- A status relationship

- A contract

- Voluntary assumption of the care of another and secluding the helpless person as to prevent others from rendering aid

Commonwealth of Kentucky v. Mitchell

Mitchell charged with first degree assault after failing to care for young man with severe disabilities. Court found could have had legal duty to care for James based on voluntary assumption of care and seclusion and potentially through a status relationship with James' mother.

Modern Trends: Homicide

Umbrella term for offenses which cause the death of another.

Split murder into degrees-Often:

1st: premeditated, felony

2nd: other intentional killings and common law murder categories

Manslaughter

- often for non-intentional killings (ex. negligent, reckless)

- Keep a version of provocation doctrine (ex. Patterson)

State v. Morton

Takeaway: premeditated murder requires some interval of planning before killing

- Court found jury mis-instructed on premeditation because told it could be instatnaneous

- Said consider 5 factors for premeditation from Murillo

1. Nature of weapon used

2. Lack of provocation

3. Defendant's conduct before and after killing

4. Threats and declarations of defendant before and during

5. Dealing of lethal blows after deceased rendered helpless

Facts: Morton fired from grocery store, went to rob, ended up killing manager

MPC Extreme Mental or Emotional Disturbance

MPC 210.3 Criminal homicide constitutes manslaughter when:

(b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.

The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be.

- Must be objectively reasonable for someone in defendant's situation/circumstances

- Partial defense: Murder down to manslaughter

Patterson v. NY

Some jurisdictions it is defendants burden to show affirmative defense by a preponderance of the evidence, proof BARD not required

- Affirmative defense is not an element of the crime so due process BARD requirement doe not apply

Facts: Patterson convicted of murder after killing the new lover of his ex-fiance. He claimed EMED after seeing them together, jury convicted based on defendant preponderance standard of proof

MPC Recklessly

MPC § 2.02(c)

A persons acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.

Risk must be of such nature that considering the conduct and circumstances known to the actor, its disregard involves gross deviation from standard conduct.

Main takeaway: was aware of the risk and consciously disregarded it

MPC Negligently

MPC § 2.02(d)

A person acts negligent with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.

Risk must be of such nature that failure to perceive I, considering conduct and circumstances known to the actor, involves gross deviation from standard conduct.

Main takeaway: was not aware of the risk, but should have been.

To be the cause of a result, an act or omission must:

Be the factual cause (actual cause) AND the proximate cause (legal cause) of the result

Factual cause

"But, for" test

But for the defendants conduct would the result have happened

- No: defendants conduct is factual cause

- Yes: defendants conduct is not factual cause because result would have happened anyways

Ex. Dorn's push was factual cause of victim falling into the fire

All results have many factual causes, it is proximate cause that narrows it down.

Proximate cause

Defendants conduct must be sufficiently closely related to the result in question.

- Moral/normative/subjective decision, not clear cut rule

Is there an intervening event which may break the chain of causation?

- If intervening event was reasonably foreseeable, it does not break the chain and defendant is liable

Event is reasonably foreseeable if a reasonable person should have know it could happen.

- Medical errors are usually reasonably foreseeable

Robertson v. Commonwealth of Kentucky

Convicted of manslaughter for recklessly causing death

Robertson challenged that his conduct was to the proximate (legal) cause of officers death

- Court found legally sufficient evidence for proximate causation, reasonable foreseeable that when Robertson turned away from responding officer, he would attempt to jump to chase him.

Facts: ran from officers during marijuana possession arrest, jumped over barrier on bridge, officer tried to follow but fell through into the river and died.

Commonwealth of Massachusetts v. Carlson

Charged with vehicular homicide by negligent operation.

- Argued legally insufficient evidence for proximate causation when victim died after refusing ventilator.

Takeaways:

- Eggshell victim rule: take victim as you find them, not a defense to say you conduct against a younger/healthier person would not have caused death

- Common knowledge that some people refuse modern medicine's invasive procedures, this is reasonably foreseeable

Modern Trends: Felony Murder

- All states except KY and HI have felony murder statutes

- Predicate felony must be "inherently dangerous"

Some states use statutory list of felonies that are inherently dangerous (State v. Morton (KS))

- Can be applied to accidental and intentional killings

Hines v. State of Georgia

Felony is inherently dangerous when it is dangerous per se OR by its circumstances creates a foreseeable risk of death

Predicate felony of possession of a firearm by convicted felon

- not dangerous per se, but by circumstances of hunting at dusk, while drinking, and shooting at target far away through brush, by its circumstances creates a foreseeable risk of death

Commonwealth of Massachusetts v. Matchett

Felony of extortion is not inherently dangerous per se, but look to circumstances to see if defendant consciously disregarded risk to human life. Court found circumstances did and jury was properly instructed.

Common limitations to felony murder

Independent felony limitation:

only applies if there is a predicate felony independent of the homicide

- so that not every killing becomes murder

Killings by non-participants in the felony:

Majority agency approach: only applies if one of the participants in the felony commits the homicide (accomplice can also be charged)

Minority proximate cause approach: applies whenever someone dies and the felony is the proximate cause of the death (ex. victim or police fire shots)

Actual possession of drugs

On your person or within reach and under your control

Constructive possession of drugs

Not physical possession, but under your dominion and control

State of Louisiana v. Booth

Must have knowingly possessed the illegal drug and constructive possession is sufficient.

Mere presence in area where drugs found is insufficient

Factors to consider for constructive possession

1. whether they knew the drugs were present

2. relationship with the person in actual possession

3. whether there is evidence of recent drug use

4. proximity to the drugs

5. evidence that the area is frequented by drug users

Court found drugs found in apartment were under man's constructed possession, join with his estranged fiance

US v. Jewell

Takeaway: Willful blindness is not a defense to knowing element of possession. Knowing element is satisfied if not aware, but ignorance was solely result of conscious purpose to disregard possession.

Appellants entered US in vehicle with marijuana hidden in it, claimed he did not know it was there.

Knowingly at common law

Person acts knowingly if they are:

1. aware of the fact

2. correctly believe the fact exists

3. suspects the fact exists and purposely avoided learning if suspicion is correct (willful blindness)

MPC knowingly

MPC § 2.02

A person acts knowingly with respect to an attendant circumstance if they are aware that such circumstances exist

MPC § 2.07

When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist

State of Iowa v. Freeman

Takeaway: cannot use mistake of fact defense if what was mistaken would be a crime

Man argued cannot be convicted of delivering a simulated controlled substance because he mistakenly believed it was cocaine, but really was Tylenol.

- Mistake of fact is a defense when it negates mens rea, here it does not. He knowingly represented the substance as a controlled substance

People v. Marrero

Takeaway: Mistake of law is almost never a valid defense

-Only allowed when government has affirmatively, albeit unintentionally misled a individual OR where it would negate specific intent of knowledge conduct was illegal (rare)

NY firearm possession: courts read in mens rea of "knowing"

Facts: Marrero mistakenly thought that as a correctional officer from CT he was a peace officer who could possess a firearm. Here was Marrero's own misinterpretation so no defense

- Dissent: his reasonable interpretation should count as a defense, even district court thought he was a peace officer, NJ statute allows for individuals reasonable interpretation after diligently pursuing all means available to ascertain meaning of law

Mistake of law at common law

Ignorance of law is no excuse

Narrow exception: mens red of knowledge that conduct is illegal (rare, specific intent)

MPC Ignorance or Mistake of law

MPC 2.04

Belief that conduct is not legally an offense is a defense to prosecution for that offense when actors acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous