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.
Most recently, in the civil patent infringement case Global-Tech Appliances, Inc. v. SEB S.A., the Supreme Court affirmed the validity of this doctrine in both civil and criminal settings, but also established some standards for its application beyond that required in most federal circuit courts. This guidance is certainly a step in the right direction, but alone is not sufficient to protect due process rights and to keep the playing field level. NACDL opposes any further expansion of this doctrine and 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.
NEW! May 12, 2014, NACDL Comments to the U.S. Nuclear Regulatory Commission on Proposed Modification to Deliberate Misconduct Rule, 79 Fed. Reg. 8097
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 & Press
"Defense Witness Immunity & Global Tech - Important Issues on Cert," White Collar Crime Prof Blog, October 7, 2012.
"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
Cases of 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
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!