If a mistake of fact in a criminal case does not negate mens rea, it may reduce it. For example, if a person honestly and reasonably, but mistakenly, believes that DEADLY FORCE is necessary to preserve her own life, she may not be found guilty of murder if a death results from the deadly force. The mistake reduced the mens rea necessary to be convicted of murder. That is, the person did not have the SPECIFIC INTENT to kill without justification or excuse. She may be found guilty of MANSLAUGHTER,aHOMICIDE less serious than murder, if her actions were unreasonable. She may even be found not guilty of any homicide if the judge or jury finds that she was not reckless or negligent in the killing. This is a QUESTION OF FACT to be determined by the judge or jury sitting on the case. In some criminal and civil cases, no mens rea is required for liability. Such cases involve STRICT LIABILITY crimes. STATUTORY RAPE is an example of a strict liability crime. It does not matter whether the defendant knew that the victim was too young to have sexual relations or whether the defendant intended to have sex with a minor. In such a case, a mistake of fact is no defense. Strict liability crimes are generally those that endanger the public WELFARE, such as toxic waste dumping and the sale of alcohol to minors. FURTHER READINGS “Contracts.” 1994. SMH Bar Review. Cox, Archibald S. 1988. The Court and the Constitution. Boston, MA: Houghton Mifflin. “Criminal Law and Procedure.” 1994. SMH Bar Review. Hedges, Andrew. 1999. “Defendant Entitled to Mistake-of- Fact Instruction.” Res Gestae 43 (November). Kionka, Edward J. 2005. Torts. Eagan, MN: West. O’Neill, Patricia A. 2001. “Criminal Law: Jury Instruc- tions—Mistake of Fact in Rape Cases.” Massachusetts Law Review 86 (fall). Available online at http://www. massbar.org/for-attorneys/publications/massachusetts- law-review/2001/v87-n3/criminal-law-jury-instructions— mistake; website home page: http://www.massbar.org (accessed August 17, 2009). Porsdam, Helle. 1999. Legally Speaking: Contemporary American Culture and the Law. Amherst: Univ. of Massachusetts. CROSS REFERENCE Mens Rea. MISTAKE OF LAW A misconception that occurs when a person with complete knowledge of the facts reaches an erroneous conclusion as to their legal effect; an incorrect opinion or inference, arising from a flawed evaluation of the facts. Generally, a mistaken belief about a law is no defense to a violation of that law. All persons are presumed to know and understand the law, except minors, persons who lack mental capacity to contract with others, and, in criminal cases, persons who are insane. There are, however, a few other rare exceptions to this general rule. A mistake of law may be helpful to criminal defendants facing prosecution for a specific- intent crime. A specific-intent crime requires that a defendant act with a criminal intent beyond the general intent required to commit the act. Murder, for example, is a specific-intent crime. The prosecution must show that the defendant specifically intended to kill the victim without justific ation. MANSLAUGHTER, conversely, requires only a showing that the defendant intended to do those actions that caused the death. If a defendant is charged with a specific- intent crime, the defendant’s reasonable mis- taken belief about the law may reduce the defendant’s criminal liability. For example, assume that a defendant is accused of robbing another person. Assume further that the defendant was actually trying to retrieve money that the alleged victim owed to the defendant. A court may hold that the defendant mistakenly believed that the law allows SELF-HELP in such situations and that the mistaken belief about the law negated the SPECIFIC INTENT required for the crime. That is, the defendant did not have the specific intent to gain control over the property of another person. Generally, a mistake of law is helpful to criminal defendants only in specific-intent cases. For general-intent and STRICT LIABILITY crimes, a mistake of law is no defense. There are other exceptions to the general rule that ignorance of the law is no excuse. If a defendant relied on a statute that permitted a certain act and the act is later made illegal, the defendant cannot be prosecuted. This applies to general-intent and strict liability crimes as well as specific-intent crimes. If a defendant reason- ably relies on a judicial decision, an opinion, or a judgment that is later reversed, the reversal does not retroactively make a related act illegal. Similarly, if a defendant acts with reasonable reliance on an official statement of law in an administrative order or from an official interpre- tation by a public officer or government agency, the defendant may use the mistake-of-law defense. Mistaken advice from an attorney, however, does not create a mistake-of-law defense. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 98 MISTAKE OF LAW FURTHER READINGS Basu, Hari Gopal. 1965. Basu’s Fraud and Mistake in Law: Civil and Criminal. Allahabud: Law Book Co. Kionka, Edward J. 2005. Torts. Eagan, MN: West. MISTRIAL A courtroom trial that has been terminated prior to its normal conclusion. A mistrial has no legal effect and is considered an invalid or nugatory trial. It differs from a “new trial,” which recognizes that a trial was completed but was set aside so that the issues could be tried again. A judge may declare a mistrial for several reasons, including l ack of jurisdiction, incorrect jury selection, or a deadlocked, or hung, jury. A deadlocked jury—where the jurors cannot agree over the defendant’s guilt or innocence—is a common reason for declaring a mistrial. Extraordinary circumstances, such as death or illness of a necessary juror or an attorney, may also result in a mistrial. A mistrial may also result from a fundamental error so prejudicial to the defen- dant that it cannot be cured by appropriate instructions to the jury, such as improper remarks made during the prosecution’s summation. In determining whether to declare a mistrial, the court must decide whether the error is so prejudicial and fundamental that expenditure of further time and expense would be wasteful, if not futile. Although the judge has the power to declare a mistrial and discharge a jury, this power should be “exercised with great care and only in cases of absolute necessity” (Salvatore v. State of Florida, 366 So. 2d 745 [Fla. 1978], cert. denied, 444 U.S. 885, 100 S. Ct. 177, 62 L. Ed. 2d 115 [1979]). For example, in Ferguson v. State, 417 So. 2d 639 (Fla. 1982), the defend ant moved for a mistrial because of an allegedly improper com- ment made by the prosecution during closing argument. The prosecution stated that not only was defense counsel asking the jury to find a scapegoat for the defendant’s guilt, he was also putting the blame on someone who had already been found guilt y. The appellate court found that the lower court had properly denied the motion for a mistrial because the prosecutor’s comment fell within the bounds of “fair reply.” A mistrial in a criminal prosecution may prevent retrial under the DOUBLE JEOPARDY provi- sion of the FIFTH AMENDMENT, which prohibits an individual from being tried twice for the same offense, unless required by the interests of justice and depending on which party moved for the mistrial. Typically, there is no bar to a retrial if the defendant requests or consents to a mistrial. A retrial may be barred if the court grants a mistrial without the defendant’sconsent,orover his objection. If the mistrial results from judicial or prosecutorial misconduct, a retrial will be barred. In United States v. Jorn, 400 U.S. 470, 9 1 S. Ct. 547, 27 L. Ed. 2d 543 (1971), the Supreme Court held that reprosecuting the defendant would constitute double jeopardy because the judge had abused his discretion in declaring a mistrial. On his own motion, the judge had declared a mistrial to enable government wit- nesses to consult with their own attorneys. CROSS REFERENCES Criminal Procedure; Harmles s Error; Hung Jury. v MITCHELL, JOHN NEWTON John Newton Mitchell served as U.S. attorney general from 1969 to 1972. A key political adviser to President RICHARD M. NIXON, Mitchell John Newton Mitchell 1913–1988 ❖ 1913 Born, Detroit, Mich. ◆ 1938 Admitted to N.Y. bar 1988 Died, Washington, D.C. 1974 Acquitted of 1973 charges; indicted for role in Watergate break-in and cover-up ◆ ◆ 1977–78 Served time in federal prison for Watergate charges 1914–18 World War I 1961–73 Vietnam War 1939–45 World War II 1950–53 Korean War ▼▼ ▼▼ 19001900 19501950 19751975 20002000 19251925 ❖ 1960 Richard Nixon lost presidential race to Kennedy 1943–46 Served in U.S. Navy 1967 Nixon's and Mitchell's New York law firms merged ◆ 1968 Served as Nixon's campaign manager 1975 Convicted of Watergate-related charges, which led to disbarment 1972 Headed Nixon's reelection committee until Watergate break-in 1973 Indicted for perjury and obstruction of justice 1969–72 Served as U.S. attorney general ◆◆ ◆ ◆ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MITCHELL, JOHN NEWTON 99 was later convicted of crimes associated with the WATERGATE scandal, becoming the first attorney general to serve time in a federal prison. Mitchell was born September 5, 1913, in Detroit. He worked his way through Fordham University and Fordham Law School playing semiprofessional hockey. After graduating from law school in 1938, he was admitted to the New York bar and began work in a New York City law firm. He was made a partner in 1942. During WORLD WAR II he served as a torpedo boat commander in the U.S. Navy. Mitchell became rich and prominent as a municipal bond lawyer, devising new ways for states and municipalities to finance construc- tion projects. He met Richard M. Nixon in 1962, when Nixon joined a prominent New York law firm. At that time Nixon appeared to have no political future; he had lost the 1960 presidential election and the 1962 California gubernatorial election. In 1967 Mitchell’s firm merged with Nixon’s and the pair became confidants. Mitchell served as Nixon’s campaign man- ager for the presidency in 1968 . He forged a conservative coalition of southern and western states that helped carry Nixon to victory over Vice President HUBERT H. HUMPHREY. During the campaign Mitchell claimed he would never accept a cabinet position if Nixon was elected. Despite these statements Mitchell accepted the post of attorney general in 1969. As attorney general, Mitchell led the JUSTICE DEPARTMENT in a sweeping law-and-order drive that many critics believed went too far. He increased the number of telephone wiretaps on private citizens and generally clamped down on political dissenters, especially those who op- posed U.S. involvement in the VIETNAM WAR.A number of these Justice Department initiatives were later ruled illegal by the courts. For example, in Ellsberg v. Mitchell, 353 F. Supp. 515 (D.D.C. 1973), the department sought to prosecute Daniel Ellsberg for leaking secret documents to the pre ss regarding military involvement in Vietnam. The release of the Pentagon Papers infuriated the Nixon White House. The case was dismissed after Ellsberg’s attorneys informed the court that a secret White House security group (the “plumbers”) had illegally broken into the office of Ellsberg’s psychiatrist in search of damaging evidence. The dismissal was also based on the Justice Depart- ment’s refusal to produce wiretap records pertaining to Ellsberg. Mitchell resigned as attor ney general in February 1972 to head President Nixon’s reelection committee. On June 17, 1972, five men were arrested after breaking into Demo- cratic National Committee headquarters at the Watergate building complex in Washington, D.C. They and two other men associated with the White House and the reelection committee were charged with BURGLARY and WIRETAPPING . Mitchell denied playing any part in the Water- gate incident but resigned from the reelection committee post in July. In May 1973 he was indicted in New York City for perjury and OBSTRUCTION OF JUSTICE in an alleged scheme to secretly contrib ute cash to the Nixon reelection campaign. He was acquitted of the charge in 1974. In that same year, however, he was indicted for conspiracy, obstruction of justice, giving false testimony to a GRAND JURY, and perjury, for his role in the Watergate break- in and cover-up. He was convicted of these charges in 1975 and sentenced to two-and-a- half to eight years in prison. After exhausting his criminal appeals, he ente red federal prison in John N. Mitchell. AP IMAGES YOU WILL BE BETTER ADVISED TO WATCH WHAT WE DO INSTEAD OF WHAT WE SAY . —JOHN MITCHELL GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 100 MITCHELL, JOHN NEWTON June 1977. His sentence was later red uced to one to four years after he made a statement of contrition. He was paroled in January 1978. His criminal convictions led to his dis- barment in 1975. Following his release he served as an international business consultant. He died on November 9, 1988, in Washington, D.C. FURTHER READINGS Justice Department. 1985. Attorneys General of the United States, 1789–1985. Washington, D.C.: GPO. Available online at http://www.usdoj.gov/ag/attygeneraldate.html; website home page: http://www.usdoj.gov (accessed July 8, 2009). Olson, James S. 1999. Historical Dictionary of the 1970s. Westport, CT: Greenwood. Rosen, James. 2008. The Strong Man: John Mitchell and the Secrets of Watergate. New York: Doubleday. v MITCHELL, WILLIAM DE WITT William de Witt Mitchell was a distinguished lawyer who became the 54th attorney general of the United States. Mitchell was born on September 9, 1874, in Win ona, Minnesota. He was the son of William Mitchell, a distinguished justice of the Minnesota Supreme Court for whom the William Mitchell College of Law in St. Paul is named. The younger Mitchell left Minnesota at the age of fourteen to attend preparatory school in New Jersey. He then entered Yale University to study electrical engineering, but during vacations back in Minnesota, he pursued his interest in the law, spending time discussing legal issues with his father and with other judges and attorneys who were family friends. As a result, after two years at Yale, he transferred to the University of Minnesota for pre-law studies. After receiving his bachelor of arts degree in 1895 and his bachelor of laws degree in 1896, he was admitted to the bar and took a position as a law clerk with Stringer and Seymour, a St. Paul law firm. When the SPANISH-AMERICAN WAR broke out in 1898, Mitchell enlisted in the Fifteenth Minne- sota Volunteer Infantry, where he became a second lieutenant and served as a JUDGE ADVOCATE for the Second U.S. Army Corp. When the war ended, he returned to St. Paul and Stringer and Seymour. After his fathe r lost his seat on the state supreme court in an election, Mitchell and the elder Mitchell established a law partnership with two other lawyers. Though his father died in 1900, Mitchell continued to practice law until another war— WORLD WAR I—intervened. Mitchell again returned to military service as an infantry officer until 1919, when he rejoined his law firm, becoming a senior partner in 1922. In 1925, through an influential friend in Washington, Mitchell’s name was brought to the attention of President CALVIN COOLIDGE, who was seekin g to fill the position of SOLICITOR GENERAL . Coolidge, a Republican, offered Mitch- ell, a Democrat, the job, passing over several better-known Republican candidates. As solici- tor general, under the direction of the U.S. attorney general, Mitchell was primarily respon- sible for representing the government of the United States before the U.S. Supreme Court in cases in which the United States had an interest. Mitchell, though he had intended to hold the position for only two years and then return to private practice, was solicitor general until 1929, appearing before the Court in 34 cases. That year, upon the recommendation of several justice s on the Supreme Court, newly elected President HERBERT HOOVER appointed Mitchell to be U.S. attorney general. Though his new role involved a wide and daunting range William De Witt Mitchell 1874–1955 ❖ 1874 Born, Winona, Minn. ◆ 1896 Earned LL. B. from University of Minnesota; joined Stringer and Seymour 1914–18 World War I 1955 Died, Syosset, N.Y. 1939–45 World War II 1950–53 Korean War 1961–73 Vietnam War ▼▼ ▼▼ 19001900 18751875 19251925 19501950 19751975 ❖ ◆ 1929 Argued the Pocket Veto case, in which Supreme Court upheld president's power to veto a bill by failing to act on it 1945 Appointed counsel for the Joint Congressional Committee on the Investigation of the Pearl Harbor Attack ◆ 1898 Served in U.S. Army during Spanish- American War 1917–19 Served as infantry officer in U.S. Army 1925–29 Served as solicitor general under Coolidge 1929–33 Served as U.S. attorney general under Hoover ◆ WE ARE GOING TO HAVE AN OUTBURST AGAINST THIS DISCOVERY BUSINESS UNLESS WE CAN HEDGE IT WITH SOME APPEARANCE OF SAFETY AGAINST FISHING EXPEDITIONS . —WILLIAM MITCHELL GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MITCHELL, WILLIAM DE WITT 101 of responsibilities (including acting as a mem- ber of the presiden t’s cabinet), Mitchell contin- ued to occasionally argue important cases himself before the High Court. One significant case was Okanogan, Methow, San Poelis, Nespe- lem, Colville, and Lake Indian Tribes or Bands of State of Washington v. United States, 279 U.S. 655, 49 S. Ct. 463, 73 L. Ed. 894 (1929), better known as the Pocket Veto case. In that decision the Supreme Court upheld the president’s power to VETO a bill by failing to return it to Congress when Congress was in recess. At the end of the Hoover administration, Mitchell returned to private practice, joining a New York law firm. Twelve years later, in 1945, Mitchell was appointed counsel for the Joint Congressional Committee on the Investigation of the Pearl Harbor Attack. Though he was selected unanimously and had virtually unfet- tered access to all departments, records, and personnel involved in the incident, Mitchell was unhappy with the slow pace of the committee’s inquiry and left the position after less than three months to again return to private practice in New York. While pract icing he served on several important commissions and was chair- man of the Committee on Federal Rules of Civil Procedure, which was charged with red rafting rules governing practice in the federal courts. He died on August 24, 1955, in Syosset, New York, at the age of 81. MITIGATING CIRCUMSTANCES Circumstances that may be considered by a court in determining culpability of a defendant or the extent of damages to be awarded to a plaintiff. Mitigating circumstances do not justify or excuse an offense but may reduce the severity of a charge. Similarly, a recognition of mitigating circum- stances to reduce a damage award does not imply that the damages were not suffered but that they have been partially ameliorated. In crim inal cases where the death penalty may be imposed, the Supreme Court has held that, under the Eighth and Fourteenth Amend- ments, juries must be instructed that they may consider mitigating circumstances such as the defendant’s youth, mental capacity, or child- hood abuse so that they may reach a reasoned and moral sentencing decision. (See Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 [1989].) Mitigating circumstances may be used to reduce a charge against a defendant. In People v. Morrin, 31 Mich. App. 301, 187 N.W.2d 434 (1971), the Michigan Court of Appeals reversed and remanded Morrin’s conviction on first-degree murder charges be- cause he committed the murder in the heat of passion caused by adequate legal provocation. The court found that because of these mitigating circumstances, the evidence was insufficient to support a first-degree murder conviction, which requires malice aforethought. In civil actions mitigating circumstances may be considered to reduce damage awards or the extent of the defendant’s liability. In Cer retti v. Flint Hills Rural Electric Cooperative Ass’n, 251 Kan. 347, 837 P.2d 330 (1992), the Supreme Court of Kansas held that a court, in reviewing a damage award, may consider any mitigating circumstances that affected the intent of the defendant, the financial worth of the defendant, or the plaintiff’s expenses. Many states allow defendants in DEFAMATION actions to prove mitigating circumstances by showing that they acted in GOOD FAITH, with honesty of purpose, and without malice in speaking or publishing the defamatory words. If the court is convinced that legitimate mitigating circumstances existed, it may reduce the amount of damages the defendant is required to pay. In Roemer v. Retail Credit Co., 44 Cal. App. 3d 926, 119 Cal. Rptr. 82 (1975), the defendant claimed that the plaintiff defaced the wall of his office, thereby mitigating the defendant’s liability for defama tory statements. However, the court did not allow the defendant to introduce this evidence because he could not prove that the plaintiff was responsible for the defacement. CROSS REFERENCES Capital Punishment; Criminal Law. MITIGATION OF DAMAGES The use of reasonable care and diligence in an effort to minimize or avoid injury. Under the mitigation of damages doctrine , a person who has suffered an injury or loss should take reasonable action, where possible, to avoid additional injury or loss. The failure of a plaintiff to take protective steps after suffering an injury or loss can reduce the amount of the plaint iff’s recovery. The mitigation of damages doctrine is sometimes called GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 102 MITIGATING CIRCUMSTANCES minimization of damag es or the doctrine of AVOIDABLE CONSEQUENCES. In contract law the non-breaching party should mitigate damages or risk a reduction in recovery for the breach. For example, assume that a property owner and home builder contract for the construction of a home in exchange for payment of $50,000. Assume further that the builder begins constructing the home but that the owner wrongfully cancels the contract before the builder has finished construction. If the builder must sue the owner to recover the unpaid portion of the contract price, a court may reduce the amount of money that the builder recovers if the builder does not try to avoid additional loss. For example, the builder could sell the materials already purchased for the job or use the materials in another job. The savings that the builder realizes will be deducted from the loss incurred on the contract in computing the builder’s net recovery in court. In TORT LAW mitigation of damages refers to conduct by the plaintiff that, although not constituting a civil wrong itself, may reduce the plaintiff’s recovery. For example, if the victim of an assault used provocative words prior to the assault, the words may mitigate the plaintiff’s damages. Most states limit mitigation of damages for provocative words to a possible reduction in PUNITIVE DAMAGES, as opposed to COMPENSATORY DAMAGES. A tort victim also should act to mitigate damages subsequent to the wrongful acts of another. For instance, assume that the victim in the assault example suffers a broken leg. If the victim refuses to get medical treatment and the leg eventually must be amputated, the defendant may be liable only for the reasonable medical expenses to repair a broken leg. Because a reasonable person would seek medical atten- tion after suffering a broke n leg, a court could find it unreasonable to make the defendant pay for additional damage that the victim could have preve nted with minimal effort. If it is unreasonable to expect the victim to mitigate damages following the injury, the defendant may be held liable for subsequent injury to the victim that stems from the wrongful act. For example, if the assault victim lives alone in a rural area without a source of transportation, and if the leg requires amputa- tion because the victim could not get to a hospital, the defendant may be held liable not only for a broken leg but for the medical expenses, pain and suffering, and lost wages associated with the amputation. FURTHER READINGS Kionka, Edward J. 2005. Torts. Eagan, MN: West. Knapp, Charles L., Nathan M. Crystal, and Harry G. Prince. 1987. Problems in Contract Law: Cases and Materials. 6th ed. Frederick, MD: Wolters Kluwer Law & Business. “Torts.” 1994. SMH Bar Review. MITTIMUS A court order directing a sheriff or other police officer to escort a convict to a prison. A mittimus is a written document. It can command a jailer to safely keep a felon until he or she can be transferred to a prison. A mittimus also refers to the transcript of the conviction and sentencing stages, which is duly certified by a clerk of court. MIXED ACTIONS Lawsuits having two purposes: to recover real property and to obtain monetary damages. Mixed actions take their character from real actions and personal actions. Originally the common-law courts in England concentrated on rights involving the possession of land. The relief granted was an order to give over possession of the real property in dispute. These were the real actions. Only later were FORMS OF ACTION developed to permit a lawsuit for monetary damages in a personal or mixed action. Then the sheriff might be ordered to collect a fine and later damages, out of the loser’s profits, which were the rents and income from land, and out of any PERSONAL PROPERTY. Special procedures existed for mixe d actions that concerned the sort of relief sought in both real and personal actions. M’NAGHTEN RULE A test applied to determine whether a person accused of a crime was sane at the time of its commission and, therefore, criminally responsible for the wrongdoing. The M’Naghten rule is a test for criminal insanity. Under the M’Naghten rule, a criminal defendant is not guilty by reason of insanity if, at the time of the alleged criminal act, the defendant was so deranged that she did not know the nature or quality of her actions or, if GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION M’ NAGHTEN RULE 103 she knew the nature and quality of her actions, she was so deranged that she did not know that what she was doing was wrong. The M’Naghten rule on criminal insanity is named for Daniel M’Naghten, who, in 1843, tried to kill England’s prime minister Sir Robert Peel. M’Naghten thought Peel wanted to kill him, so he tried to shoot Peel but instead shot and killed Peel’s secretary, Edward Drummond. Medical experts testified that M’Naghten was psychotic, and M’Naghten was found not guilty by reason of insanity. The public chafed at the verdict, and the House of Lords in Parliament ordered the Lords of Justice of the Queen’s Bench to fashion a strict definition of criminal insanity. The Lords of Justice complied and declared that insanity was a defense to criminal char ges only if at the time of the committing of the act, the party accused was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. (Queen v. M’Naghten, 8 Eng. Rep. 718 [1843]) The aim of the M’Naghten rule was to limit the INSANITY DEFENSE to cognitive insanity, a basic inability to distinguish right from wrong. Other tests formulated by legislatures and courts since M’Naghten have supplemented the M’Naghten rule with another form of insanity called volitional insanity. Volitional insanity is experi- enced by mentally healthy persons who, al- though they know what they are doing is wrong, are so mentally unbalanced at the time of the criminal act that they are unable to conform their actions to the law. The M’Naghten rule was adopted in most jurisdictions in the United States, but legisla- tures and courts eventually modified and expanded the definition. The definition of criminal insanity now varies from jurisdiction to jurisdiction, but most of them have been influenced by the M’Naghten rule. Many jurisdictions reject volitional insanity but retain cognitive insanity with a minor variation on the M’Naghten definition. Under the M’Naghten rule, a person was legally insane if she was so deranged that she did not know what she was doing. Under many current statutes, a person is legally insane if she is so deranged that she lacks substantial capacity to appreciate the criminality of her conduct. The difference between the two definitions is largely theoretical. In theory, the latter definition is more lenient because it requires only that a person lack substantial capacity to appreciate her conduct. FURTHER READINGS Kaplan, John, Robert Weisberg, and Guyora Binder. 2008. Criminal Law: Cases and Materials. 6th ed. Frederick, MD: Wolters Kluwer Law & Business. Menninger, Karl. 2007. The Crime of Punishment. Bloo- mington, IN: AuthorHouse. Regoli, Robert M., and John D. Hewitt. 2009. Exploring Criminal Justice: The Essentials. Boston: Jones & Bartlett. CROSS REFERENCES Durham Rule; Insanity Defense. MOCK TRIAL A simulated trial-level proceeding conducted by students to understand trial rules and processes. Usually tried before a mock jury, these proceedings are different from MOOT COURT proceedings, which simulate appellate arguments. Mock trials are sometimes used as an ALTERNATIVE DISPUTE RESOLUTION tool, in which parties that are not inclined to negotiate may see how the merits of their respective cases stand when argued before neutral evaluators. MODEL ACTS Statutes and court rules drafted by the American Law Institute (ALI), the AMERICAN BAR ASSOCIATION (ABA), the COMMISSIONERS ON UNIFORM LAWS,and other organizations. State legislatures may adopt model acts in whole or in part, or they may modify them to fit their needs. Model acts differ from UNIFORM ACTS, which are usually adopted by the states in virtually the same form proposed by the American Law Institute and other organizations. The ALI was founded in 1923 by a group of American judges, lawyers, and la w professors. Its goal was to resolve uncertainty and com- plexity in American law by promoting clarifica- tion and simplicity in the law. Since its founding, the organization has worked with other scholarly organizations to draft model and uniform statutes that may be adopted by the various state legislatures. One of the most successful of ALI’s model acts is the MODEL PENAL CODE. First adopted in 1962, it has had a major influence on the way that states draft penal codes. In fact, the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 104 MOCK TRIAL majority of states revised their penal codes based upon the provisions of the Model Penal Code. The code attempts to, among other things, create uniformity in such controversial areas as the authority of the courts in sentencing and how to define specific crimes, including criminal HOMICIDE and KIDNAPPING. In 2002 the ALI announced that it was launching a reexamination and revision of the sentencing provision of the code. The ABA also approves drafts of model laws and rules. The Model Business Corporation Act (MBCA) is an example of a model act approved by the ABA that was implemented successfully. The MBCA was first adopted in 1950 and revised substantially in 1969, 1971, and 1983. It addresses all aspects of corporate legal structure, from bylaws to shareholder rights to fiduciary responsibilities. At least 18 states have adopted the act in its entirety. Many other states have adopted significant portions of the act. Other model acts adopted in whole or in part by the states include the Model Rules of Professional Conduct, the Model Probate Code, the Model Class Actions Act, the Model Juvenile Court Act, and the Model Survival and Death Act. FURTHER READINGS Goldstein, Elliott. 1985. “Revision of the Model Business Corporation Act.” Texas Law Review 63. LexisNexis Info Pro. 2009. Zimmerman’s Research Guide: Model Acts. Available online at http://www.lexisnexis. com/infopro/zimmerman/disp.aspx?z=1699; website home page: http://www.lexisnexis.com (accessed September 7, 2009). “Uniform Laws and Model Acts.” 2009. Harvard Law School Library Research Guides. Available online at http://www. law.harvard .edu/librar y/research/ guides/united_s tates/ uniform-laws-and-model-acts.html; websitehomepage: http://www.law.harvard.edu (accessed September 7, 2009). MODEL PENAL CODE The Model Penal Code (MPC) is one of the most important developments in American law, and perhaps the most important influence on American CRIMINAL LAW since it was completed in 1962. Conceived as a way to standardize and organize the often-fragmentary criminal codes enacted by the states, the MPC has influenced a large majority of states to change their laws. Although some provisions of the MPC are now considered outdated, and the code fails to address many important recent criminal law issues, its impact could still be felt as the country entered the twenty-first century. Members of the American Law Institute (ALI), a group of judges, lawyers, and legal scholars whose purpose is to clarify and improve the law, began working on the Model Penal Code in 1952. The group had abandoned two previous attempts to create a model criminal code. The third attempt took ten years, and the ALI produced numerous drafts, reports, and revisions. Herbert Wechsler, a Columbia Law School professor, served as the chief reporter, or principal drafter. From 1953 to 1962, ALI council members examined, considered, and debated the work of Wechsler, his staff, and his advisors in a total of 31 drafts. Finally in 1962 the MPC was completed and published. The impact of the MPC was i mmediate. For many states, the notion of codifying their cri- minal code was a foreign one—their criminal statutes were often poorly organized and did not define their crimes. The MPC arranged matters differently, organizing itself into four parts: (1) general provisions containing defini- tional functions and presumptive rules; (2) defi- nitions of specific offenses; (3) provisions governing treatment and correction; and (4) provisions governing the organization of corrections departments and divisions such as the divisions responsible for PAROLE or PROBATION. Several elements of the MPC have changed the way criminal law is administered in the United States. A good example of this is in the issue of mens rea, meaning state of mind or guilty mind. Previous state criminal statutes took a scattershot approach to mens rea, requiring it for some crimes and not for others, and using multiple terms to measure culpabi- lity. The MPC stated simply that a person is not guilty of an offense unless he or she acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense. It then proceeded to define what these terms meant in a criminal law context, and what types of conduct would satisfy these terms. The clarity and simplicity of this approach made it desirable for many states to replace their codes with MPC-influenced codes. Following the introduction of the MPC, 36 states adopted new criminal codes, all of them influenced by the MPC and some of them using the exact GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MODEL PENAL CODE 105 language of the MPC for their statutes. Even if they did not adopt the language, some states used the MPC’s model of organization as a starting point. In addition, the MPC’s influence is felt in the courts, where judges often rely on the code when handling substantive criminal law deci- sions. It has also become an important teaching tool in law schools, where the commentaries accompanying the code are read, as well as the code itself, in an attempt to gain insight into criminal law. Although the MPC has come under some criticism since the 1990s, with some critics suggesting that it may be time for revision, it remains firmly ensconced as an influence in the criminal laws of more than two-thirds of the states. FURTHER READINGS Dubber, Markus Dirk. 2001. “Penal Panopticon: The Idea of a Modern Model Penal Code.” Buffalo Criminal Law Review 4. Available online at http://wings.buffalo.edu/ law/bclc/bclrarticles/4(1)/dubberpdf.pdf; website home page: http://wings.buffalo.edu (accessed August 17, 2009). Lynch, Gerard E. 1998. “Towards a Model Penal Code, Second (Federal?): The Challenge of the Special Part.” Buffalo Criminal Law Review 2. Robinson, Paul H., and Jane A. Grall. 1983. “Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond.” Stanford Law Review 35 (April). Available online at http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=662025; website ome page: http://papers.ssrn.com/ (accessed August 17, 2009). MODEL RULES OF PROFESSIONAL CONDUCT See PROFESSIONAL RESPONSIBILITY. MODIFICATION A change or alteration in existing materials. Modification generally has the same mean- ing in the law as it does in common parlance. The term has special significance in the law of contracts and the law of sales. The parties to a completed and binding contract are free to change the terms of the contract. Changes to a preexisting contract are called contract modifications. If the parties agree to modify the contract, the modification will be enforceable in a court of law. A contract modification may be either written or oral, with some exceptions. An oral modification is unenforceable if the contract specifies that modifications must be in writing (United States ex rel. Crane Co. v. Progressive Enterprises, Inc., 418 F. Supp. 662 [E.D. Va. 1976]). As a general rule, a modification should be in writing if it increases or decreases the value of the contract by $500 or more. In contracts between parties who are not merchants, a modification should be supported by some consideration, which is the exchange of value, or something to solidify an agreement. Courts imp ose this requirement to prevent FRAUD and deception in the modification of contracts. Consideration operates as evidence that the parties have agreed to the modification. Without the requirement of consideration, a party to a contract could declare that the contract should be modified or canceled whenever such a demand was advantageous. In contracts between merchants, a modifi- cation need not be supported by consideration. Derived from article 2, section 209, of the UNIFORM COMMERCIAL CODE, this rule is designed to honor the intent of commercial parties without requiring the time-consuming techni- calities of consideration. Like any non-merchant, a merchant is free to reject a proposed modification, but a merchant may waive the right to reject a modification by failing to object to the modification. For example, if an electrician doing work as a subcontractor notifies the general contractor that the electrical work will be more expensive than anticipated, the general contractor may be obliged to pay for the extra expenses if she fails to object before the electrician begins the work. There must be a legitimate commercial reason for such a contract modification, and the modi- fication must be reasonable in light of the standards within the particular industry. Courts are free to strike down contract modifications that are brought about by duress or bad faith. CROSS REFERENCE Sales Law. MODUS OPERANDI [Latin, Method of working.] A term used by law enforcement authorities to describe the particular manner in which a crime is committed. The term modus operandi is most com- monly used in criminal cases. It is sometimes referred to by its initials, M.O. The prosecution in a criminal case does not have to prove modus operandi in any crime. However, identifying GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 106 MODEL RULES OF PROFESSIONAL CONDUCT and proving the modus operandi of a crime can help the prosecution prove that it was the defendant who committed the crime charged. Modus operandi evidence is helpful to the prosecution if the prosecution has evidence of crimes committed by the defendant that are similar to the crime charged. The crimes need not be identical, but the prosecution must make a strong and persuasive showing of similarity between the crime charged and the other crimes. The prosecution may introduce evi- dence from prior or subsequent crime s to prove modus operandi only if the other crimes share peculiar and distinctive features with the crim e charged. The features must be uncommon and rarely seen in other crimes, and they must be so distinct that they can be recognized as the handiwork of the same person. For example, assume that a defendant is on trial for armed ROBBERY. In the robbery the defendant is alleged to have brandished a pistol and ordered the victim to relinquish cash and valuables. Assume further that the defendant has committed armed robbery in the past by brandishing a pistol and demanding cash and valuables. A prosecutor might be able to in- troduce the evidence into trial to show the defendant’s motive, intent, or state of mind, or to identify the weapon used in the crime. However, the prosecutor could not argue to the judge or jury that the robberies were so similar as to demonstrate that it was the defendant who committed that particular robbery, because it is not unusual for a robber to brandish a pistol and demand cash and valuables in the course of an armed robbery. Now assume that a defendant is charged with robbing a movie theater that was showing the movie Showgirls and that the defendant was wearing a glittering, flamboyant Las Vegas-style cabaret costume during the robbery. Assume further that the prosecution has evidence that the defendant, while dressed as a Las Vegas dancer, has robbed other movi e theaters showing the movie Showgirls. The prosecution could introduce this evidence into trial to prove modus operandi and show that it was the defendant who committed the crime, because the method of armed robbery used in the crimes was both similar and distinctive. During the 1982 trial of Angelo Buono, California’s notorious “Hillside Strangler,” the prosecution relied on modus operandi evidence to show similarities in the deaths of ten victims. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION MODUS OPERANDI 107 . mistake -of- law defense. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 98 MISTAKE OF LAW FURTHER READINGS Basu, Hari Gopal. 1965. Basu’s Fraud and Mistake in Law: Civil and Criminal. Allahabud: Law. SOME APPEARANCE OF SAFETY AGAINST FISHING EXPEDITIONS . —WILLIAM MITCHELL GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MITCHELL, WILLIAM DE WITT 101 of responsibilities (including acting as a mem- ber of. BETTER ADVISED TO WATCH WHAT WE DO INSTEAD OF WHAT WE SAY . —JOHN MITCHELL GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 100 MITCHELL, JOHN NEWTON June 1 977 . His sentence was later red uced to one