Willful Blindness

Willful blindness, also known as conscious avoidance, is a judicially-made doctrine that expands the definition of knowledge to include closing one's eyes to the high probability a fact exists. While the doctrine originated in the context of drug trafficking cases, it has since been expanded to a wide array of prosecutions and is increasingly used in the white collar cases. Consistently benefiting the prosecution, a request to instruct the jury on willful blindness usually comes on the heels of weak evidence of knowledge, without any advance warning to the defense, and invites the jury to convict based on evidence of mere negligence or recklessness.

Fordham Intent Defenses PanelIn 2011, with the civil patent infringement case Global-Tech Appliances, Inc. v. SEB S.A., the Supreme Court affirmed the validity of the willful blindness doctrine in both civil and criminal settings while simultaneously establishing some standards for the doctrine's application beyond that required in most federal circuit courts. At the outset, this guidance appeared to be a step in the right direction albeit insufficient to protect due process rights. Since Global-Tech, however, the federal courts of appeals have been reluctant to apply this more stringent standard in criminal cases and the playing field has remained dramatically uneven.

The use of the willful blindness doctrine in criminal prosecutions is deeply troubling. NACDL not only opposes further expansion of this doctrine, but is working to reform its use and influence in the criminal justice system. This page provides news and resources on the willful blindness doctrine and efforts at meaningful reform.

Pictured above: NACDL Members Professor Ellen Podgor and Andrew Wise discussing the willful blindness doctrine at NACDL's 7th Annual Defending the White Collar Case Seminar on September 23, 2011. 

News, Commentary & Advocacy

May 12, 2014, NACDL Comments to the U.S. Nuclear Regulatory Commission on Proposed Modification to Deliberate Misconduct Rule, 79 Fed. Reg. 8097 

"Landmark 'willful blindness' decision has failed to deliver," Daily Journal, April 4, 2014.

"Defense Witness Immunity & Global Tech - Important Issues on Cert," White Collar Crime Prof Blog, October 7, 2012.

"Patently Unusual: How a Recent Supreme Court Patent Decision Alters the Landscape for Proving Criminal Knowledge," White-Collar Crime, Westlaw Journal, September 2011.

"Supreme Court Speaks About Willful Blindness," White Collar Crime Prof Blog, June 1, 2011

"Improving 'Willful Blindness' Jury Instructions In Criminal Cases After High Court's Decision in Global-Tech," BNA Criminal Law Reporter, June 15, 2011

"Quality Control at the Second Circuit: 38 Years of Willfulness Jurisprudence Thrown Out in Kaiser?," White Collar Crime Prof Blog, July 3, 2010

Prosecutions Based on Willful Blindness  

Wesley C. Walton v. United States  

Global-Tech Appliances, Inc., et al. v. SEB S.A.  

United States v. David C. Geisen  

United States v. Mark P. Kaiser  

United States v. Richard Stadtmauer  

Programming 

Webcast CLE - The Accidental Felon: Challenging the Expansion of the Willful Blindness Doctrine  

In Global-Tech Appliances, Inc. v. SEB S.A., the Supreme Court decided a civil patent case that dramatically altered the criminal legal landscape of willful blindness. In this one-hour program, our highly experienced panelists Timothy O'Toole (Miller & Chevalier, Washington, DC) and Ellen Podgor (Stetson Univ. College of Law, Gulfport, FL), evaluate the contours of the willful blindness doctrine, explore the latest jurisprudence, and offer practical defense strategies. (Recorded June 17, 2011) Click here for free online video!  

Webcast CLE - Ignorance is Bliss, But Is It Also a Crime? Opening Your Eyes to the Willful Blindness Doctrine 

The willful blindness or conscious avoidance doctrine has allowed prosecutors to obtain convictions against several high-profile white collar defendants, including Bernard Ebbers, Ken Lay and Jeff Skilling. This highly experienced panel evaluates the contours of the doctrine, explore recent cases that highlight the current state of the law and offer successful defense strategies. This program features Moderator Andrew Wise (Miller & Chevalier, Washington, DC), joined by Daniel Brown (Murphy & McGonigle, Washington, DC), K.C. Maxwell (Law Office of K.C. Maxwell, San Francisco, CA), and Alexandra Walsh (Baker Botts, Washington, DC).  (Recorded September 17, 2010)  Click here for free online video! 

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