CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, January 12, 2021

Simons on Willful Blindness

Kenneth W. Simons (University of California, Irvine School of Law) has posted The Willful Blindness Doctrine: Justifiable in Principle, Problematic in Practice (Arizona State Law Journal, 2021, Forthcoming) on SSRN. Here is the abstract:
This article was presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at Arizona State University’s Sandra Day O’Connor College of Law.

Under the willful blindness doctrine widely employed in federal criminal prosecutions, courts expand a statutory “knowledge” or “willfulness” requirement to encompass “willful blindness” or “deliberate indifference.” The WB doctrine bridges the gap between recklessness and knowledge, treating a subcategory of recklessness cases as if they were knowledge cases—namely, those cases in which defendant is not merely aware of a substantial risk that the incriminating fact exists, but also deliberately avoided confirmation of the incriminating fact. This article closely examines different versions of the WB doctrine as well as its application in recent cases. Careful analysis suggests that the doctrine, although justifiable in the abstract as a matter of principle and policy, is highly problematic in practice. With respect to the first element of WB, courts offer little guidance about how much suspicion defendant must harbor that the incriminating fact exists. With respect to the second element, courts give varying and often inadequate explanations of the meaning of “conscious” or “deliberate avoidance” or “deliberate ignorance.” For example, they often do not resolve whether a simple failure to inquire into the facts suffices.

I conclude that courts should either significantly narrow the doctrine or, better, suspend its use until empirical research demonstrates that it can be accurately, consistently, and fairly implemented. More generally, there is a compelling need for more empirical study of how ordinary people and legally trained actors understand such mens rea terms as knowledge, belief, recklessness, willful blindness, and deliberate avoidance.

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