The Ostrich Instruction: Deliberate Ignorance as a Criminal Mens Rea

44 Pages Posted: 27 May 2016

See all articles by Ira P. Robbins

Ira P. Robbins

American University - Washington College of Law

Date Written: 1990


The criminal-law doctrine of deliberate ignorance, or "willful blindness," is an area that raises both legal and philosophical issues concerning the level of subjective conviction and objective evidence that constitutes knowledge. Professor Glanville Williams described willful blindness in the following terms:

A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness.

A common example is the traveler who accepts a large sum of money from a stranger to transport a suitcase but chooses not to examine the contents for fear of discovering contraband. This tactic appears to preserve the defense of ignorance when knowledge is an element of an offense. By refraining from inquiry or investigation, most defendants can deny actual knowledge of the pertinent facts and presumably escape conviction.

Deeming deliberate ignorance to be a culpable attempt to cheat justice, the federal courts have sought to eliminate the defense by expanding the definition of knowledge. Traditionally, knowledge requires an actual awareness of the existence of a particular fact. The federal courts have rejected his positive-knowledge standard in favor of the Model Penal Code approach: knowledge of a fact is established "if a person is aware of a high probability of its existence, unless he actually believes that it does not exist." Thus, the prosecution need only show that the defendant recognized the likelihood of a particular fact. This approach reaches many defendants who would otherwise avoid conviction simply by ignoring their suspicions.

The central legal question raised by this approach is whether a conviction based on a deliberate ignorance, or "ostrich," jury instruction is compatible with the constitutional requirement that the prosecution prove each element of the crime, including knowledge, beyond a reasonable doubt. The corresponding philosophical question is whether knowledge of a fact can exist in the absence of subjective certainty or objective confirmation. These questions implicate both the relationship between the individual and the state and the relationship between the judiciary and the legislature. If neither question can be answered in the affirmative, then a conviction that is obtained would violate the defendant's constitutional rights because the state had not met its burden of proving knowledge. Furthermore, if the judiciary substitutes a lesser mental state for statutorily prescribed knowledge, then it encroaches on the legislative prerogative of defining criminal conduct.

This Article explores the deliberate-ignorance doctrine and recognizes that, through the loophole provided by the defense, the defendant may escape conviction by maintaining his or her ignorance despite indications that he or she is involved in criminal activity. The Article concludes, however, that the high-probability/unless definitional approach of the Model Penal Code is an unacceptable solution.

Keywords: criminal law, willful blindness, Model Penal Code

Suggested Citation

Robbins, Ira P., The Ostrich Instruction: Deliberate Ignorance as a Criminal Mens Rea (1990). 81 Journal of Criminal Law and Criminology 191 (1990)., Available at SSRN:

Ira P. Robbins (Contact Author)

American University - Washington College of Law ( email )

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