Avoiding Not-So-Harmless Errors: The Appropriate Standards for Appellate Review of Willful-Blindness Jury Instructions

Abstract:     
From fairly inconspicuous beginnings, the willful-blindness doctrine has proliferated throughout federal courts. Federal prosecutors currently request willful-blindness jury instructions even when the evidence does not warrant their use, and trial judges frequently grant these requests over defense objections that inappropriate willful-blindness instructions confuse jurors and relieve prosecutors of their burden of proof with respect to the defendant’s mental state. One of the primary reasons federal courts misuse willful-blindness instructions is that the circuits are split over the appropriate guidelines for the appellate review of willful-blindness instructions. To curb misuse of willful-blindness instructions, appellate courts should use the abuse-of-discretion standard to review a trial court’s decision to give a willful-blindness instruction, use the de novo standard to review the accuracy of the wording of a willful-blindness instruction, and delineate instances where the inappropriate use of willful-blindness instructions is not harmless error, especially in contexts such as white-collar criminal prosecutions.

Number of Pages in PDF File: 45

Keywords: willful, blindness, wilful, conscious, avoidance, deliberate, ignorance, ostrich, jewell, instruction, standard of review, harmless error, de novo, abuse of discretion, white collar, Enron, Skilling, harmless, per se, crime, criminal, law, appeal, circuit split, litigation

Accepted Paper Series