Willful Blindness and Criminal Liability

Some people figure that, if they avoid true knowledge that they’re doing something illegal, they can’t be convicted. Not so fast.

By Jane Rydholm

Sometimes it’s tempting to bury one’s head in the sand—there are some things you just don’t want to know about. But, at least when it comes to criminal law, willful blindness may not get you very far.

Looking the Other Way

State of mind is crucial in criminal law. In many cases, it’s clear what the defendant knew—for example, in an average theft case, it’s clear that the defendant was aware that the property in question belonged to someone else. But sometimes it’s not so clear what the defendant knew.

Although establishing what a defendant knew and didn’t know can be a challenge for prosecutors, it can be enough for them to establish that the defendant purposely avoided knowledge of a key fact or circumstance. Indeed, a defendant’s deliberate ignorance of facts can serve as substitute for actual knowledge.

Ostrich Instruction

Courts use different terms to refer to deliberate ignorance—like willful ignorance, willful blindness, and conscious avoidance. And they have a separate, informal term for a jury instruction that deals with this concept—they call it the ostrich instruction.

A judge may give the ostrich instruction to a jury when the evidence at trial could suggest that the defendant’s lack of knowledge of a fact needed for a conviction resulted from deliberate ignorance. The instruction might come into play, for instance, in a conspiracy case, where the prosecution must prove that the defendant entered into an agreement to commit a crime. A judge might give the ostrich instruction if there’s evidence that the defendant consciously avoided knowing the conspiracy’s goals.

Juries aren’t supposed to interpret negligence, mistake, or carelessness as willful blindness. Instead, they are to consider whether the defendant was aware of a high likelihood of the fact in question and deliberately avoided confirming it. In that vein, the ostrich instruction is only appropriate when the circumstances indicate that the sole way the defendant could not have known about the fact is by avoiding knowledge of it. (U.S. v. Aulicino, 44 F.3d 1102 (2nd Cir. 1995); U.S. v. Tanner, 628 F.3d 890 (7th Cir. 2010); U.S. v. Svoboda, 347 F.3d 471 (2nd Cir. 2003);US v. Mitrano, 658 F. 3d 117 (1st Cir. 2011); U.S. v. Malewicka, 664 F.3d 1099 (7th Cir. 2011).)

Example 1: After two planning sessions, a group of men agree to kidnap a banker. Most of the men have previously been involved in multiple kidnappings. The police stop the men while they are waiting outside of the banker’s house. Anthony, who was with the group, claims that he didn’t know about the kidnapping plan, and instead thought they were there to collect a debt. The court gave a “conscious avoidance” charge to the jury, and the jury convicted Anthony of conspiracy to kidnap. This instruction was proper because Anthony was aware of a prior attempted kidnapping and a jury could infer that he was present at the planning of this kidnapping. The evidence suggested that, if Anthony didn’t actually know the group’s illegal plan, he must have intentionally avoided knowing it. (U.S. v. Aulicino, supra.)

Example 2: The government charges Rachel with securities fraud and conspiracy to commit securities fraud as a result of her trading activities. Rachel’s friend, Sarah, worked at a bank and knew confidential information about the bank’s clients. Sarah says she passed the information to Rachel, who used it to make trades, and that the two shared the profits from the illegal trading. Sarah also says that she and Rachel agreed upon the details of the plan and that Rachel knew her trades were based on illegally obtained information. Rachel, however, denies knowing Sarah gave her unlawful insider information. The court gives the jury an ostrich instruction, and the jury convicts Rachel. The instruction was appropriate because Rachel knew that Sarah was a bank officer with access to financial information, the timing of Rachel’s trades was suspicious, and so was the success of the trades. In short, either she knew that the source of the information was illegal, or she purposely avoided confirming her suspicion of that fact. (U.S. v. Svoboda, supra.)

Obtain Legal Advice

The willful blindness doctrine is complex and applies only in certain situations. If you are facing charges and wondering about it, seek the advice of an experienced criminal defense attorney.