Model Penal Code section 2.02(7) and willful blindness.

• Author: Marcus, Jonathan L.

Courts and criminal law scholars have struggled for decades to sort out the relationship between the basic concept of knowledge, which is central to our notions of criminal responsibility, and the concept of "willful blindness."(1) According to the Model Penal Code (the Code),(2) knowledge of a fact is satisfied by finding an "awareness of a high probability" that it existed.(3) The drafters of the Code explain that they defined knowledge of a fact this way in order to address "the situation British commentators have denominated |willful blindness' or |connivance,' the case of the actor who is aware of the probable existence of a material fact but does not determine whether the fact exists or does not exist."(4)

All the federal circuits have employed willful blindness doctrines.(5) These doctrines are used in order to facilitate conviction of defendants who may not have had actual knowledge of the crucial fact but who are considered culpable nonetheless. Recent decisions by the Second, Ninth, and Tenth Circuits, however, highlight the confusion and conflict that willful blindness doctrines have generated(6) since the Ninth Circuit first gave willful blindness extensive treatment in United States v. Jewell.(7)

The Second and Ninth Circuits have cited Model Penal Code Section 2.02(7) as support for their willful blindness doctrines and include the provision in their willful blindness jury instructions.(8) In so doing, these circuits have drawn a distinction between actual or positive knowledge of a fact and willful blindness, creating separate jury instructions and evidentiary requirements for each condition.(9) Although both circuits apply a similar evidentiary test for permitting a willful blindness instruction, the Ninth Circuit has stood by its view that the willful blindness doctrine should be used only "rarely," whereas the Second Circuit has maintained that the doctrine is "commonly used."(10) Other circuits have employed willful blindness doctrines without reference to Section 2.02(7),(11) and the Tenth Circuit has recently rejected including Section 2.02(7) as part of its willful blindness jury instruction.(12) The Tenth Circuit also has developed special evidentiary standards for a finding of willful blindness that differ from those of the Second and Ninth Circuits.

This Note argues that employing a broad definition of knowledge, rather than carving out a willful blindness alternative to a strict knowledge requirement, will promote a simple, effective, and more honest enforcement of the criminal law. Adopting such an approach will eliminate the need to rely on the vague and misleading notion of conscious avoidance(13) and will permit conviction of culpable defendants without jeopardizing the rights of innocent actors.

Part I discusses the common law doctrine of willful blindness and how the Code drafters addressed it in their definition of knowledge of a fact. Part II discusses federal case law, focusing on the conflict that has emerged among the Second, Ninth, and Tenth Circuits with regard to willful blindness. To resolve the conflict, Part III proposes abandoning the willful blindness doctrine where the statute requires knowledge, employing instead a revised Section 2.02(7) as the appropriate definition of knowledge of a fact.

1. FROM THE COMMON LAW DOCTRINE OF WILLFUL BLINDNESS To SECTION 2.02(7)

   1. Origins in English law

      Willful blindness first appeared as a substitute for actual knowledge in English case law over a century ago.(14) A judge in Regina v. Sleep(15) ruled that an accused could not be convicted for possession of "naval stores" unless the jury found that he "knew that the goods were government stores or wilfully shut his eyes to the fact."(16) English judicial authorities thereafter referred to the state of mind that accompanied one who "wilfully shut his eyes" as "connivance" or "constructive knowledge."(17) Several cases in the late nineteenth century, involving innkeepers and hall-porters denying knowledge of "gaming" on their premises, also addressed willful blindness. In both Bosley v. Davies(18) and Redgate v. Haynes,(19) for example, the courts noted that actual knowledge was unnecessary for conviction if the defendant purposely abstained from acquiring this knowledge.(20)

      These English authorities were unclear, however, on the level of awareness the defendant had to have of a fact in order to make him subject to conviction on a willful blindness theory. Some decisions suggested that a defendant's failure to investigate a suspicion of wrongdoing in order to avoid knowledge would be considered willful blindness. Others indicated that only where the evidence demonstrated that criminal activity was obvious to the defendant would the defendant's ignorance be culpable, because such evidence suggested that the defendant's ignorance was really just a charade.(21)

   2. The Common Law Doctrine in the Federal Courts

      The Supreme Court approved the use of the willful blindness concept in Spurr v. United States.(22) The defendant, Spurr, was charged with knowingly certifying certain checks drawn on a bank that was unable to cover them. The Court noted that an "evil design may be presumed if the officer purposely keeps himself in ignorance of whether the drawer has money in the bank or not . . . ."(23) The rationale behind this presumption may have been that the defendant had a duty to know the amount of money in a customer's account. Lower courts later began to use willful blindness as an alternative to actual knowledge but did not limit its application to statutes that imposed a duty to know on defendants. Indeed, the willful blindness doctrine is currently invoked most frequently under federal narcotics statutes, which are only prohibitory and involve no legal duty to know.(24)

      Applying the doctrine as an alternative to knowledge in the absence of a legal duty to know raises problems. Culpability based on conscious avoidance of a fact seems intuitively more reasonable where there is a duty to know that fact, since, where a statute imposes a duty to know, willful blindness under virtually any conception of it would be a violation of that duty. By contrast, where a statute is only prohibitory and requires a finding of "knowing" conduct, an actor is not necessarily culpable if he avoids knowledge of the critical fact. Because the common law doctrine of willful blindness condemns avoiding knowledge of a fact without specifying any particular level of awareness the defendant must have with respect to that fact, use of this doctrine in the absence of a duty to know creates the risk of unjust conviction.

   3. The Model Penal Code Approach and the Rationale Behind Section 2.02(7)

      The Code drafters did not view willful blindness as actual knowledge disguised by pretended ignorance. Nor did they characterize it as acting despite a suspicion of wrongdoing. Rather, the drafters understood the willfully blind actor to be one who acts with a high level of awareness of a particular fact.(25) They defined knowledge of a fact in order to cover this mental state, requiring the prosecution to prove that the defendant had an "awareness of a high probability" that a fact existed.

      Knowledge is initially defined in Section 2.02(2)(b)(i) of the Code:

      (b) Knowingly. A person acts knowingly with respect to a material

      element of an offense when: i) if the element involves the nature of

      is conduct or the attendant circumstances, he is aware that his

      conduct is of that nature or that such circumstances exist.(26) This initial definition of knowledge leaves unclear the level of awareness needed for a defendant to have knowledge of a fact that makes his conduct "of that nature." However, Section 2.02(7), stating that knowledge of a fact is established if a person is aware of a high probability of its existence, makes it clear that the defendant need not be certain of a fact in order to be convicted under a statute requiring "knowing" conduct. Section 2.02(7) provides:

      (7) Requirement of Knowledge Satisfied by Knowledge of High

      Probability.

      When knowledge of the existence of a particular fact is an element of

      an offense, such knowledge is established if a person is aware of a

      F.2d 1163, 1166-67 (10th Cir.), cert. denied, 112 S. Ct. 320 (1991) (tax avoidance).

      high probability of its existence, unless he actually believes that it

      does not exist.(27)

      This rule rests on the assumption that the actor who commits an act even though he knows it is highly probable that a crucial fact exists is just as culpable as the actor who has virtually certain knowledge. The actor who is aware of a high probability of a fact's existence has been "put on notice;"(28) that is, he has the opportunity, if he cares, to investigate and eliminate any doubt before acting(29) or, in any event, to refrain from acting. That his knowledge does not rise to the level of certainty should not excuse commission of the act. By engaging in conduct while aware of a high probability that such conduct is criminal, the actor has manifested his indifference to the values underlying the criminal prohibition in much the same way as the actor who is certain his conduct is criminal.(30) Consequently, the criminal law should not differentiate between them.(31)

      1. The Common Law Approach Versus The Model Penal Code

         In defining knowledge of a fact broadly to include not only actors with near-certain knowledge but also those who are aware of a high probability that the fact exists, the Code does not require the latter group to have "purposely avoided" or "wilfully shut [their] eyes" to that fact, as does the common law doctrine of willful blindness.(32) The confusion willful blindness has engendered among courts and scholars alike suggests some reasons for the Code's approach. First, there has never been universal agreement on what willful blindness to the truth represents. It has been treated both as a failure to investigate upon suspicion of wrongdoing and as...