Willful ignorance in the criminal law
Let us start by asking what light the law sheds on our question. To lawyers in the common-law tradition, deniability brings to mind a familiar criminal law doctrine called willful ignorance - or, as it is sometimes called, “willful blindness” or “conscious avoidance.”[400] In essence, the doctrine states that willful ignorance is equivalent to knowledge.
Self-generated deniability doesn’t work: you can be convicted of knowingly committing a crime even if you don’t commit it knowingly - provided that you contrived your own ignorance.The doctrine seems intuitively just. But why? It is Biblical wisdom that we forgive those who know not what they do. Culpability presupposes a guilty mind. But ignorance is nothing more than an empty mind, and for that reason there is a profound puzzle in explaining exactly why ignorance, willed or not, should support criminal convictions. The Orwellian-sounding identity ignorance = knowledge is, to put it mildly, an equation crying out for a theory. Criminal lawyers take two approaches to this problem, neither of which turns out to be entirely satisfactory.
The negligence approach
The first approach is to argue that even if the wrongdoer didn’t know, he should have known. But the phrase “should have known” triggers a familiar line of legal reasoning. “Should have known” implies a legal duty to know, and failure to know amounts to negligence.
In other words, “he should have known, but he didn’t” means in the common law that he was negligent. This familiar point of doctrine leads to two problems. The first is explaining why we have a duty to know. The law is generally reluctant to impose affirmative duties on people, unless they occupy posts of special responsibility. And a duty to know looks especially dubious. It cannot really be that we have a duty to inform ourselves about everything that might affect our obligations - that duty would know no outer bound, and fulfilling it would take up all of our time for the rest of our lives.
It also raises moral problems of its own. Is it a duty not to mind our own business? A duty to meddle? A duty to pry? A duty to snoop? A duty to mistrust and double-check every suspicious fact someone else tells us? Common sense tells us that we have no such duty. But then where is the negligence?The second problem is that even if we agree that willful ignorance is a kind of negligence, doing something negligently is less culpable than doing it knowingly. The usual hierarchy of blame in the criminal law moves in ordered steps. The Model Penal Code, for example, distinguishes four levels of culpability. The worst is acting willfully or purposely, by making the misdeed our conscious object.[401] Next is acting knowingly, by acting in full awareness of our misdeed, although not necessarily with the misdeed as our object. Next comes acting recklessly, by consciously disregarding a substantial and unjustifiable risk that we are doing wrong. Last comes acting negligently, by acting when we should be aware of a substantial and unjustifiable risk of misdeed, even if we are not actually aware.[402]
In other words, negligence isn’t as bad as knowledge; in the Model Penal Code scheme, it is two levels removed from knowledge. Suppose that a statute forbids knowingly transporting a controlled substance across state lines. If I transport a controlled substance negligently - merely negligently, as my lawyer will insist - I cannot be convicted under this statute. The prosecutor must prove that I did it knowingly. Under the negligence analysis of willful ignorance, willful ignorance cannot be equivalent to knowledge, and the common law equation collapses.
Nor is this a purely theoretical problem. Every good criminal lawyer understands how it might play out in practice. The most frequent complaint
about willful-blindness instructions to a jury is that such instructions illicitly convert crimes requiring knowledge to crimes of mere negligence. As the Seventh Circuit Court of Appeals admonished while reversing a willful- blindness conviction, ostriches “are not merely careless birds.”[403]