Willful Blindness Doctrine: Justifiable in Principle, Problematic in Practice

Kenneth W. Simons

Chancellor’s Professor of Law and Philosophy 
University of California, Irvine School of Law

Under the willful blindness (WB) doctrine widely employed in federal criminal prosecutions, courts expand a statutory “knowledge” or “willfulness” requirement to encompass “willful blindness” or “deliberate indifference.” For example, courts conclude that for drug possession or distribution crimes that explicitly require knowing possession of the illegal drugs, a defendant can be convicted merely upon proof that he or she was willfully blind to whether the item possessed contained an illegal drug. (Suppose E pays money to D to transport a sealed box to F, and D knows that both E and F deal in drugs.) The doctrine has been applied to a wide range of other federal crimes, including smuggling firearms, medical insurance fraud and other types of fraud, identity theft, child pornography, transporting stolen property, money laundering, tax evasion, the Foreign Corrupt Practices Act, environmental crimes, and failure to pay child support, and also conspiracy to engage in a variety of offenses. The Supreme Court recently endorsed the WB doctrine in a noncriminal context, holding in Global-Tech Appliances v. SEB S.A. that active inducement of patent infringement requires either knowledge that the induced acts amount to patent infringement or WB to that fact. The Court’s endorsement is likely to spur wider use of the doctrine in other civil and criminal law contexts.