Willful Blindness is a theory of liability in the federal criminal justice system that just doesn’t seem fair.  The doctrine of willful blindness helps prosecutors convict defendants who deliberately shield themselves from clear evidence of critical facts that are strongly suggested by the circumstances.  If a defendant who behaves in this manner, they are just as culpable as those who have actual knowledge of the criminal activity.   It is also said that persons who know enough to blind themselves to direct proof of critical facts in effect have actual knowledge of those facts.

Legally, even if you had no knowledge of something bad occurring, as long as you could have reasonably known, you could be found guilty if it is proved that you meet the conditions for willful blindness or deliberate ignorance. Let’s say, for instance, that you own a business and through this business you subcontract some work out. You have no idea what that third party is doing – you subcontracted for the sole purpose of not having to deal with it. Turns out the subcontractor did some illegal things and used your company’s name while doing it. You wake up one morning and find that the government is coming after you and they’re charging you for the crimes that the subcontractor committed as a co-conspirator. Although you had no idea what they were doing, if the prosecution proves that you should have known, or that you were willfully blind to what was happening, you could be found guilty. Under the law, if they can prove that there was a high probability that you knew what the subcontractor was doing and that you deliberately avoided learning the truth, you can even be convicted of the crime.

Interestingly, courts are handling the idea of willful blindness differently. The Supreme Court believes that if the prosecution can prove that the defendant subjectively believed there was a high probability of something illegal happening then they could be held accountable for their actions. The 9th Circuit believes that actual knowledge can only be established if the defendant was aware of a high probability of the illegal actions existing. The case that fully cemented the Supreme Court’s opinion on willful blindness was Global-Tech Appliances v. SEB S.A., 131 S. Ct. 2060 (2011). At the conclusion of that trial, the court determined that there were two requirements to prove willful blindness, first, the defendant had to subjectively believe that there was a high probability that an illegal action took place and second, the defendant had to have taken deliberate action to avoid learning about the illegal action.

After this Supreme Court ruling, there was one person, Justice Anthony Kennedy, who publicly dissented and his reasoning was that he didn’t agree that willful blindness could be substituted for actual knowledge. Many other judges in different courts have echoed his beliefs over the years since the U.S. v. Jewell case in 1976 where the idea of willful blindness was first explored. Today, many attorneys and judges will be arguing the idea on a case per case basis whenever the facts of the case require,  because no one person has been able to solidify what willful blindness means in a concrete legal sense and when or even if it can be substituted for a defendant having actual knowledge of an illegal activity that they haven’t carried out.

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