Wednesday, January 23, 2013

Conscious Avoidance All Over Again (1/23/13)

I am again back on the conscious avoidance issue in its use generally and specifically in tax crimes.  The background is that tax crimes are the -- certainly an -- exception in Anglo-American jurisprudence where ignorance of the law is a defense.  Tax crimes require knowledge that the known facts are a crime.  Generally, crimes requiring knowledge merely require knowledge of the facts and not that the law defines knowledge that those facts constitute a crime.  Hence, for crimes requiring knowledge of facts, ignorance of the law is not a defense so long as the facts are known; for tax crimes requiring as an element intentional violation of a known legal duty, ignorance is a defense or, to put be more technically correct, the Government has not proved beyond a reasonable doubt that the defendant intended to violate a known legal duty where the defendant does not know the law.  I have obsessed on that fundamental point in early email, so I will not cover that ground again but will extend the obsession by addressing related points.

We all learned in law school (at least the older lawyers among us) that irrebuttable or conclusive presumptions of fact are suspect.  For example, if the element of the crime (or, in a civil context, an element of the cause of action, requires that fact A exist, then can the statute -- key here, statute -- require that A be conclusively -- or irrebuttably -- presumed if Fact B exists?  At one time in our jurisprudence, that type of conclusive or irrebuttable presumption was deemed to be constitutionally suspect, even in civil contexts.  But, wait, the effect of such a statutorily compelled conclusive or irrebuttable presumption is that the crime (or civil action) exists, whether or not A exists (or at least in the absence of proof that A exists), so long as B exists.  In other words, the substantive elements of the crime (or cause of action) have changed.  And, certainly, so long as the Congress (or the relevant legislature) has legislated that change, there would seem to be no due process problem so long as there is some reasonable -- not perfect, but reasonable -- relationship between Fact A and Fact B.  But this assumes that Congress (or a relevant legislature) has statutorily legislated presumption.

The application of conscious avoidance in the federal criminal law, however, is not based on legislation.  Rather, it is based on judicial interpretation.  Therein lies the problem.  Certainly, in the context of tax crimes, Congress has not said that conscious avoidance is a substitute for specific intent to violate a known legal duty.  Only the courts, or at least some of them, have made that bold suggestion (and send defendants to jail based on the bold suggestion).

The conscious avoidance concept is that, depending upon how it is interpreted and applied, it either: (1) PERMITS an inference of Fact A (knowing conduct) from proof of Fact B (conscious avoidance of knowledge of Fact B) or (2) it COMPELS an inference of Fact A (knowing conduct) from proof Fact B (conscious avoidance of Fact B).  The second alternative is where the problem lies.  And, as applied to tax crimes, it is not simply knowledge of the fact that the law mandates to be a crime but knowledge of the law itself.  The conscious avoidance concept is not really designed to deal with that construct, unless knowledge of the law is a fact that can be plugged into these formulae.
This brings us to the issue of presumptions.  What would be the effect of a jury instruction in a criminal case that a jury MAY presume knowledge from proof of the fact of conscious avoidance of knowledge of the fact?  What would be the effect of a jury instruction in a criminial case that a jury MUST presume knowledge from proof of the fact of conscious avoidance of the fact.  The latter would be suspect.  See Sandstrom v. Montana, 442 U.S. 510 (1979), here; and Francis v. Franklin, 471 U.S. 307 (1985), here.

Actually, wife is out of town this evening and I have too much time on my hands; hence my revisiting of the issue.

Still, I would appreciate the views of readers on this topic.


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  2. We might add a third category:

    (3) it PRESUMES an inference of Fact A (knowing conduct) from proof Fact B (conscious avoidance of Fact B).

    That is, the Court could adopt a position that if the taxpayer has avoided learning about whether his action is legal the Court will presume that his taking the action was knowing conduct, but the taxpayer could rebut that by giving an explanation for why his avoidance of learning was innocent.

    For example, the taxpayer has used an accountant every year to prepare his taxes, but this year, when he took a complicated illegal position, he did not. The taxpayer, however, can show that he was very short of cash this year, and so he could not afford an accountant.

  3. That's a good point. But, I don't think that is the way the law has developed for Conscious Avoidance and its related concepts. I think the binary choice is that conscious avoidance is proof of actual intent (a bit of an oxymoron) or conscious avoidance can permit the trier to infer actual intent.

    But you are right that presumption can operate as you describe it.

    Jack Townsend


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