Georgia Criminal Defense Blog

The Defense of Mistake of Fact in Georgia

Posted by Richard Lawson | Aug 06, 2018 | 0 Comments

As a Georgia Criminal Defense Lawyer, I want everyone to be as aware of their rights and the defenses available to them should they ever be accused of committing a crime.

There are many Georgia Criminal Defenses, and today, I will focus on the defense of mistake of fact.

Mistake of Fact

The Georgia Code defines the defense of mistake of fact in Georgia as:

A person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission. O.C.G.A. §16-3-5.

According to Georgia Courts, the mistake of fact defense is applicable if the accused person is accused of a crime that requires a specific mental state. If the accused person does not have the required mental state due to a mistake of fact, then the defense applies.

The mistake that the accused person made must be a reasonable one, or in other words, it must be a mistake that an ordinary person would have made under the circumstances. However, if the accused person's mistake is due to his or her own fault or negligence, then the defense does not apply.


Bobby has been accused of theft by taking in Georgia. Bobby took a laptop from school thinking it was his laptop, however, it was another student's computer. Here is a mistake of fact. Bobby thought the laptop was his, but it wasn't. Bobby's mistake of fact negates the intent required by the legal elements of theft in Georgia. The specific intent would be to “deprive another of their property.” Bobby did not intend to take the other student's laptop, and it was a reasonable mistake.

Practice Note

Mistake of fact is a defense that puts the defendant's intent when he committed the crime at issue. Intent is an element of the crime that the prosecution must prove.

As a Georgia Criminal Defense Attorney, I bring up the prosecution's burden of proof often. People mistakenly believe that if a person is accused of a crime, then they are most likely guilty. However, this is not the case. Everyone has the presumption of innocence until proven guilty beyond a reasonable doubt.

If the defendant brings up the defense of mistake of fact, the burden of proof is still on the prosecution to prove, beyond a reasonable doubt, that the defendant had the required intent to commit the crime. If the State of Georgia cannot do that, the defendant must be acquitted.

If you or a loved one has been accused of a crime in Georgia, contact us today.

About the Author

Richard Lawson

Managing Partner at Lawson & Berry:


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