A couple nights ago the BBC was discussing a case ongoing with a famous person.
I did not catch most it but they said that federal law has a wilful blindness charge and in state courts a person could say "I see nuthing, I hear nuthing, I know nuthing" as a defence, but not in a federal court.
What is wilful blindness and how does it work?
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 white collar cases.
(Source)
The definition above, from the National Association of Criminal Defense Lawyers, however, is less apt than the one below from Wikipedia which better captures the essence of it:
In law, willful ignorance is when a person seeks to avoid civil or criminal liability for a wrongful act by intentionally keeping themselves unaware of facts that would render them liable or implicated. In United States v. Jewell, [532 F.2d 697 (9th Cir. 1976),] the court held that proof of willful ignorance satisfied the requirement of knowledge as to criminal possession and importation of drugs.
The concept is also applied to situations in which people intentionally turn their attention away from an ethical problem that is believed to be important by those using the phrase (for instance, because the problem is too disturbing for people to want it dominating their thoughts, or from the knowledge that solving the problem would require extensive effort).
Terminology
Willful ignorance is sometimes called willful blindness, contrived ignorance, conscious avoidance, intentional ignorance, or Nelsonian knowledge.
The jury instruction for willful blindness is sometimes called the "ostrich instruction".
While there might be a distinction between federal law in some circumstances and the law of a particular state with regard to a particular matter, in general, willful blindness is a doctrine invoked in both federal and state courts in both civil and criminal cases.
For example, in civil fraud cases in most state courts, willful blindness can substitute for the requirement that the person committing the fraud has knowledge that a statement made in fraudulent.
The Supreme Court of Canada has summarized (R. v. Briscoe, 2010 SCC 13, para. 21, internal citations removed):
Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. ... “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”
They also explained the distinction between mere recklessness and wilful blindness:
The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.
