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Is That What I Meant? Litigating Intent in White Collar Crime
By Demosthenes Lorandos
The state of a man’s mind is as determinable
as the state of his digestion.”
Edgington v. Fitzmaurice,
29 Chancery Division 459 (1889)
What do Kenneth Lay, Martha Stewart, Jeffrey Skilling, and Conrad Black
have in common? They all intended to do smarmy things. How do we know?
The juries told us so. And it was easy for those juries to come to that
conclusion. As litigators in white collar crime, we all live in fear of
the “you don’t have to know the law to show intent” instruction.1
And let’s not forget about the “he wasn’t paying attention”
instruction,2 the “willful blindness” instruction,3 and “‘knowledge’
includes deliberate avoidance of knowledge” — the much feared “ostrich
instruction.”4
Intentionality clearly plays a crucial role in white collar criminal
prosecutions. In fact, it is usually a key element of the charged white
collar offenses — be it conspiracy, mail fraud, wire fraud, securities
fraud, bank fraud, falsifying books and records, insider trad
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