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6. If the jury believes his testimony, the man should be
He was indicted for kidnapping in State A, extradited from State B, and tried. At trial, he testified that he had relied on his attorney's advice in taking the daughter, and that at the time he believed his conduct was not illegal.
After a bitter court battle a couple was divorced and the woman was given custody of their daughter. The man later moved to State B where he brought an action to obtain custody of the daughter. A local judge awarded him custody. His attorney incorrectly advised him that, under this award, he was entitled to take the daughter away from the woman. The man drove to State A, picked the daughter up at her preschool, and took her back to State B with him.
A kidnapping statute in State A makes it a crime for a person, including a parent, to «take a child from the custody of his custodial parent, knowing he has no privilege to do so.»
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A is incorrect. Attorney's advice is not considered an «official interpretation of the law,» which is required for the proper application of a mistake of law defense. However, his reliance on the attorney's advice did, in this case, negate the requisite mental state for kidnapping.
C is incorrect. While this may be a valid statement of the law, it is an incorrect answer because it ignores the fact that the man did not know he had no privilege to take the daughter, and thus could not be convicted of kidnapping.
D is incorrect. This applies a reasonable person standard; however, the appropriate standard is a subjective one. The statute requires that the man take the child knowing he did not have the privilege to do so. If the jury believes him, the man did not take a child from the custody of his custodial parent, knowing he had no privilege to do so, and cannot be properly convicted of kidnapping.