Regulatory: Avoiding willful blindness allegations

Not knowing is not always a defense in white-collar criminal investigations

During the Watergate hearings, Senator Howard H. Baker Jr. famously asked, "What did the President know, and when did he know it?" In white-collar criminal investigations, prosecutors are increasingly asking corporate executives not only what they knew and when, but also whether they purposely acted to avoid knowledge of possible wrongdoing.

Such “willful blindness” (sometimes referred to as “deliberate indifference” or “contrived ignorance”) is a term used in situations where an individual deliberately avoids knowledge of facts that would expose him to civil or criminal liability. The question in a willful blindness case is not “What did you know?” but “What could you have known?” Intent and knowledge are often the critical element that the government must prove in a white-collar criminal case, and under well-established case authority, willful blindness is deemed the equivalent of actual knowledge.

Contributing Author

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Tracy E. Schloss

Tracy E. Schloss is an associate in Drinker Biddle & Reath's Commercial Litigation Practice Group, where her practice focuses primarily on white collar...

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Contributing Author

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Ronald A. Sarachan

Ronald A. Sarachan is a partner in Drinker Biddle & Reath's Commercial Litigation Practice Group and co-chair of the White Collar/Internal Investigations Team. He focuses...

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