Thursday, January 12, 2012

Further on Conscious Avoidance as a Substitute for -- or Indistinguishable From -- Willfulness (1/12/12)

I have previously written on the logical inconsistency of and dangers of the conscious avoidance concept that juries may be asked to apply in tax crimes requiring willfulness -- defined as the intentional violation of a known legal duty.  The problem is that the jury may believe that it can convict if the defendant knew (the statutory requirement) or should have known but did not because he or she consciously avoided knowledge (not the statutory requirement).  For prior rantings on this subject, click the Conscious Avoidance label below.

I have just had the opportunity to review an article on a related subject.  Francis X. Shen, Morris B. Hoffman, Owen D. Jones, Joshua D. Greene, Rene Marois,  Sorting Guilty Minds, 86 NYU L. Rev.1306 (2011), here.  The synopsis of the article is:
Because punishable guilt requires that bad thoughts accompany bad acts, the Model Penal Code (MPC) typically requires that jurors infer the mental state of a criminal defendant at the time the crime was committed. Specifically, jurors must sort the defendant’s mental state into one of four specific categories—purposeful, knowing, reckless, or negligent—which will in turn define both the nature of the crime and the degree of the punishment. The MPC therefore assumes that ordinary people naturally sort mental states into these four categories with a high degree of accuracy, or at least that they can reliably do so when properly instructed. It also assumes that ordinary people will order these categories of mental state, by increasing amount of punishment, in the same severity hierarchy that the MPC prescribes. 
The MPC, now turning fifty years old, has previously escaped the scrutiny of comprehensive empirical research on these assumptions underlying its culpability architecture. Our new empirical studies, reported here, find that most of the mens rea assumptions embedded in the MPC are reasonably accurate as a behavioral matter. Even without the aid of the MPC definitions, subjects were able to distinguish regularly and accurately among purposeful, negligent, and blameless conduct. However, our subjects failed to distinguish reliably between knowing and reckless.
Federal tax crimes (and many federal crimes) makes the cut differently than the MPC -- that is, the tax crimes require willful conduct.  At least for tax crimes, willfulness is the intent to violate a known legal duty.  Without willfulness, there is no crime.  I would posit that willfulness, as articulated, is equivalent to the "purposeful" or at least "knowing" categories under the MPC.  So, if the conduct falls under the other categories, the conduct would not rise to willfulness for tax purposes.  And specifically, conduct that is merely reckless would not have the necessary intentionality to violate a known legal duty as Cheek and its predecessors require (at least facially on the articulated definition of willfulness).  More to the point, the jury must be given the tools to meaningfully distinguish the categories.  The authors conclude that, at least in the case of the parallel categories  in the MPC, juries are not given those tools.

There is great danger conscious avoidance instruction in federal tax cases may cover conduct that the MPC describes as reckless.  The article thus states about the reckless standard (p. 1311):
For the lion’s share of crimes that require some level of culpability beyond negligence, history’s next cut was to recognize a difference between mere negligence and something that various legal systems called “recklessness,” “gross negligence,” “willful blindness,” or other labels that connote a level of culpability higher than mere negligence but lower than the infliction of desire-based harm.
The authors thus note at least in the MPC context that "willful blindness" -- which is just another description for conscious avoidance -- can be equated with recklessness as opposed to purposefulness or knowing.

The authors note the difficulty in discerning when there is the MPC equivalent of willful blindness (pp. 1351-1352, emphases supplied):

Conceptually, it might also be the case that subjects are making differentiations based on their assessments of the actor's (implied) willfulness in being ignorant. The MPC's treatment of willful blindness has been debated for many years by commentators. n112 At issue is  [*1352]  whether and when the law should treat actors without "knowledge" as if they in fact had knowledge. n113 Given that such vociferous debate exists within scholarly circles about where the boundary line exists for knowing acts, it may not come as a surprise that our subjects have more difficulty assigning punishment in this area.
   n112. See, e.g., Jonathan L. Marcus, Model Penal Code Section 2.02(7) and Willful Blindness, 102 Yale L.J. 2231, 2231 (1993) (providing summary of how "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'"); see also Robin Charlow, Wilful Ignorance and Criminal Culpability, 70 Tex. L. Rev. 1351, 1372 (1992) ("No single definition of knowledge is universally agreed upon or regularly employed, even within the limited context of criminal mens rea."); David Luban, Contrived Ignorance, 87 Geo. L.J. 957, 962 (1999) (arguing that the MPC's emphasis on an actor's subjective state of mind at the moment of the crime is a completely different issue from that of determining willful ignorance).
   n113. See Steven P. Garvey, What's Wrong with Involuntary Manslaughter?, 85 Tex. L. Rev. 333, 371-72 (2006) ("An otherwise reckless actor who could have easily gathered the additional information needed to transform his belief that p*[substantial] into the belief that p*[practically certain] (and thus into knowledge) is willfully ignorant if he chose not to do so because he wanted for no good reason not to know."). Moreover, it is also the case that in some contexts, such as securities fraud, reckless conduct can actually be used as proof of knowledge. Cf. William H. Kuehnle, Secondary Liability Under the Federal Securities Laws - Aiding and Abetting Conspiracy, Controlling Person, and Agency: Common-Law Principles and the Statutory Scheme, 14 J. Corp. L. 313, 328 n.75 (1988) (noting that some courts appear to limit recklessness to the role of evidence of knowledge rather than as an objective standard of liability). 

Finally, I offer the authors' Conclusions ( pp. 1354-1355):

At fifty years old, the Model Penal Code has managed to avoid rigorous empirical evaluation of two fundamental assumptions that underlie its culpability architecture. Can typical jurors, either on their own or at least when instructed, accurately sort culpable mental states into the four MPC categories? If so, are people’s punishments consistent with the hierarchy of severity assumed by the MPC?  
Our experiments suggest that the answers to both of these questions are a qualified “yes” for most, but not all, of the MPC states of mind. Subjects punished across the purposeful, negligent, and blameless categories in the way the MPC hierarchy assumes—purposeful conduct was punished more than negligent conduct, and negligent conduct more than blameless conduct. Not only did these blaming patterns persist across harm levels, but punishment levels also increased with harm. 
In contrast to these generally confirming results, however, subjects performed much more poorly at the knowing/reckless juncture. Subjects’ punishment patterns were a far cry from the MPC’s expectations. For the vast majority of the themes, there was no statistically significant difference between knowing and reckless punishment ratings. In many instances, subjects actually reversed the MPC hierarchy and punished reckless behaviors more than they punished knowing ones. Part of this failure to differentiate punishment, we found, is likely related to subjects’ inability to identify knowing and reckless scenarios as well as they identify purposeful and blameless scenarios. Subjects were able to identify purposeful conduct an impressive 78% of the time, and blameless conduct an even more impressive 88% of the time.115 They were less good, however, at identifying knowing (50%) and reckless (40%) conduct. These poor results emerged even when subjects were repeatedly instructed on the distinction.116 While subjects were not just randomly guessing (in which case they would have been accurate just 20% of the time), and while we cannot expect 100% accuracy, surely these surprisingly low rates of accuracy should give us pause. 
If the line between knowing and reckless is  a meaningful analogy to the line between willfulness and conscious avoidance, this study suggests that juries will had a difficult time discerning that line.  Further, conscious avoidance should not be used as a substitute for willfulness in the federal tax crimes arena.  Perhaps it is semantical, but I think if the term conscious avoidance or its synonyms has meaning where Congress has mandated willfulness and courts have defined willfulness as intent to violate a know legal duty, conscious avoidance can have meaning only where the jury can infer beyond a reasonable doubt that the object acts that might be characterized as conscious avoidance in fact prove that level of intent.  And the instructions should be shaped accordingly.

I would appreciate readers' thoughts on this subject.


  1. Mr. Townsend, someone told me that there is case law that says, essentially, that conscious avoidance cannot be used to prove criminal conspiracy. Do you have an opinion on that supposition? Your help is appreciated.

  2. I don't know what case law you precisely refer to. But the conspiracy law generally is that the defendant charged must have consciously joined the conspiracy charged. Hence, it would not be surprising that there is a case law that conscious avoidance is not the same or will substitute for the requirement that the defendant must have consciously joined the conspiracy. But, then, of course, the law, as interpreted by the Supreme Court in Cheek (based on its precedent) that "willfully" -- the statutory requirement for most tax crimes in Title 26 -- requires intentional violation of a known legal duty, and many courts permit conscious avoidance (aka willfful ignorance, willful blindness, etc.) as a substitute for intentional violation. I have argued before that, in the tax crimes context, that expansion of the plain meaning of willfulness is inappropriate, and I would think it would be inappropriate also in the context of the requirement that the alleged conspirator have consciously -- willfully, if you will -- joined the conspiracy.

    Jack Townsend


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