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Willful Blindness: What You Don't Know Can Hurt You



Every first year law student knows the concept of mens rea, which requires proof of a "guilty mind" before a defendant may be convicted of a crime. Many criminal statutes require that a defendant "know" a particular fact before he may be convicted of a crime. For example, the federal counterfeiting statute requires that the defendant "knowingly" attempt to pass off a counterfeit bill -- i.e., that the defendant know not only that he is using a bill, but also that the bill he is using is bogus.

But what does it mean to "know" a fact? In Global-Tech Appliances, Inc. v. SEB, S.A., the Supreme Court held for the first time that "willful blindness" may satisfy a statute's knowledge requirement (most Circuit Courts had already accepted the doctrine). Under the "willful blindness" doctrine, a defendant may be convicted of violating a statute that requires knowledge of a fact, even if the defendant did not have actual knowledge of that fact, where the defendant's ignorance is deliberately contrived. The Gloal-Tech court went on to hold that recklessness is insufficient to prove "willful blindness;" it requires proof that an individual "subjectively believe[d]" that a "high probability" existed with regard to the fact in question, and took "deliberate actions to avoid learning of the fact."

To the extent it imposes these requirements on the "willful blindness" instruction, Global-Tech can be read as heightening the prosecution's burden. But it is worth taking a step back, and, rather than focusing on the requirements of the doctrine, questioning the validity of the doctrine at all. Justice Kennedy did just that in his dissent in Global-Tech. The majority in that case wrote that an individual who deliberately avoids learning a fact "can almost be said to have actually known" that fact (emphasis added), but as Justice Kennedy pointed out, the willful blindness doctrine is used "to bring those who lack knowledge within the ambit of a statute that requires knowledge" (emphasis added). The majority also wrote that willfully blind defendants "are just as culpable as those who have actual knowledge," but Justice Kennedy found this to be a "question of morality and of policy" that is "best left to the political branches."

The willful blindness doctrine has been created not by legislatures, but by, in Justice Kennedy's words, "judges . . . broadening a legislative proscription by analogy." Moreover, as Justice Kennedy also noted, Global-Tech involved the interpretation of a civil statute concerning patent infringement, and the Court's decision was made without briefing or argument from the criminal defense bar." In short, in Global-Tech, the Supreme Court put its imprimatur on a doctrine that substantially eases the burden of prosecutors in proving knowledge, and that may allow convictions for very serious crimes based on far less evidence of complicity than was contemplated by the legislature that created the crime requiring "knowledge." It did so in a case in which there was no briefing or argument concerning the effect of the decision on criminal proceedings. There can be little doubt that the decision will result in more findings of guilt, either by juries not required to find actual knowledge, or through plea agreements driven by defendants' fear that, even if they did not know a crime was being committed, a jury might find that they should have.

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Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.