Tuesday, May 9, 2006

Looks Like the Ostrich is In

According to Mary Flood's Houston Chronicle Blog here, it looks like the draft instructions include willful blindness.  (see co-blogger Peter Henning's post here)  But there is a question perhaps about whether this instruction fits the case. (see here).

Clearly this instruction makes is easier for the prosecution as it allows the jury to find knowledge when there is an avoidance of having that knowledge.  But the more important question here is whether the prosecution should push for this instruction if the defense argues against it being given. The question that the prosecution needs to ask is whether this instruction is necessary to prove their case. If this instruction is given and the defendants are found guilty, will this create an issue for appeal?  Is it worth that risk?  Or is the risk greater of a not guilty if the instruction is omitted?



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