I need help. Does the Sex Offender Registration Statue, specifically the offense of faliure to comply - 62.10 - violate due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge?

In Lambert v. California, 355 U.S. 225 (1957), the Supreme Court reversed a defendant�s conviction for violating a municipal ordinance that made it illegal for a convicted felon to remain in Los Angeles for more than five days without registering with the police. The Court found the statute unconstitutional as applied, and reversed the defendant�s failure-to-register conviction. The court held �that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand.� Lambert, 355 U.S. at 229. Thus, to comply with due process considerations, such a failure to register conviction could only stand when applied to a person who has either actual knowledge of his duty to register, or where a showing is made of the probability of such knowledge. Id. at. 226-230.

So - since 62.10 is appears to be a strict liability offense, can a defendant successfully advance a due process violation if he can show he never had notice (no actual or constructive knowledge)of his duty to register???

Are you looking to advance such a defense?

No. I am looking to defeat such a claim and uphold the constitutionality of the statute. In the light of Lambert, it looks like the statute, if not facially unconstitutional, is unconstitutionally applied to an offender who demonstrates no knowledge, actual or constructive, of his duty to comply with the registration requirements.

I find it hard to believe that a defendant could present a credible claim that he didn't know he was supposed to register.

At the time of any guilty plea, he gets warnings.

Upon placement on probation, it is likely a condition of supervision.

Upon release from prison, it is a condition of parole and the subject of information received from prison officials.

Often, a person has registered at least once, and at that point received additional information about registration.

Regardless, I wouldn't think that ignorance of the law is permitted as a defense.

Best I could offer is the treatment of Lambert in Varnes, 63 S.W.2d at 831. I suppose some slip through with no notice, but seems really hard to argue in light of all the attention given to the law and the new admonishments. Next to Miranda, I would guess sex offender registration is the most "known about" provision of the criminal law these days, and I would argue its up to the offender to apply the law to his facts even if he doesn't get all the guidance he might like.

The concept of a Defendant trying to claim that he had no notice is not new. The times I've seen seen argument work are to date "0". Are you saying that there is nothing in the record of the plea and nothing in the probation records that show he was warned?

I agree. In past cases, there was always some evidence that the defendant knew or should have known, as was the case with the defendant in Varnes. . .This particular defendant was coinvicted once in 1986 & again in 1993 in Michigan - Michigan enacted their registration statue in 1994. He lived briefly in Texas during the past year or so - proved by the fact he obtained a Texas ID card and from conversations with his one-time landlord. He never registered as a sex offender anywhere as far as I can tell. The compliance officer with the local police department looked for him, couldn't find him, and filed charges of failure to comply. Our office extradicted him from North Carolina to proseucte him for failure to comply. He pled guilty after litiging a pre-trial motion claiming he did not have any knowledge of his duty to register and did not willifully violate the statute and therefore the statute as applied to him violates due process. He did not waive his right to appeal and filed a proper 25.2 notice.

I'm stuck. I think he might be right.

But . . .I am going to argue that the notoriary of sex offender registration satutes - given the fact that all 50 states have them - should put a convicted sex offender on notice and override Lambert. I was just wondering if you all could come up with something else . . . .

Call me simplistic, but doesn't the tenet "ignorance is no defense" apply? Tovar v. State, 978 S.W.2d 584 (Tex. Crim. App. 1998). Is there any distinction that Lambert dealt with a municipal ordinance, while Article 62 is the law of the State? Is the distinction that registration is a required act while the crime of failure to register is a prohibited act, and ignorance of prohibited acts is not a defense, while ignorance of required acts is?

I would also like to point out that Martin has set a personal best for short postings. Way to go!

How in the world does a defendant get to litigate his guilt in a pretrial hearing? A judge may not hear and decide whether a defense exists during a pretrial hearing. See State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1994) (op. on rehearing). The defendant has to have a trial and claim he didn't have the requisite mental state. Even then, the State should be able to instruct the jury that ignorance is not a defense.

A mother has a duty to protect her child, but she doesn't get off by saying that she didn't know about that duty. It is imposed by law, just like the duty for a sex offender to register.

John it occurs to me that you have hit on something. If there is an improper evidentiary hearing on an affirmative defense pre-trial, the defendant pleads guilty, and then presents no similar evidence at that time (at the trial proper), can he rely on the pre-trial evidence upon appeal? To me it is neither a bill, nor a proper part of the record since there was no basis for the hearing. Same issue has arisen for me in dealing with the testimony presented at an untimely hearing on motion for new trial.

This scenario happens frequently in DWI cases. Defendant claims one of the priors is no good and wants to file a motion to quash. The problem is that a judge can't decide a motion to quash on grounds of insufficient evidence. The motion to quash must be decided on the face of the indictment.

So, even if defendant presents evidence about prior DWI, judge can't rule on that basis. Defendant must go to trial and raise evidence to defeat that element of the offense or wait and claim that evidence was insufficient.

And you are correct, Martin, an appellate court can't consider the evidence in the pretrial hearing. Here is some language lifted from one of those cases (unpublished):

An allegation of two prior DWI convictions is an essential element of a prosecution for felony DWI. See Jimenez v. State, 981 S.W.2d 393, 396 (Tex. App.--San Antonio 1998, pet. ref'd); Addington v. State, 730 S.W.2d 788, 789 (Tex. App.--Texarkana 1987, pet. ref'd). Accordingly, the trial court that reviewed the challenge to the 1995 indictment had no authority to make a pre-trial determination as to the sufficiency of the State's evidence to prove the Wise County conviction as an enhancement. See Rosenbaum, 910 S.W.2d at 948.

[This message was edited by John Bradley on 02-14-03 at .]