What Is Conscious Avoidance and How Can It Land You in Jail?

In many criminal cases, especially in federal white collar prosecutions, the defense is "I didn't know what those other people were doing." This defense is in line with a basic principle of our criminal justice system -- that people are only responsible for their own actions. However, there are times when it simply doesn't work.

Nicco Capozzi
May 21, 2018

 

In response to an "I didn't know" defense, prosecutors will often argue conscious avoidance. Conscious avoidance means deliberately avoiding the truth and is commonly referred to as an ostrich defense for the bird's tendency to stick its head in the sand when things go wrong. The Supreme Court of the United States has ruled that conscious avoidance occurs when a defendant subjectively believes that there is a high probability that a fact exists and the defendant takes deliberate actions to avoid learning that fact.

Conscious avoidance can take a number of forms. It can be a supervisor suspecting that employees are breaking the law, but looking the other way because of the profits they are earning the company. It could be an employee who believes that what they are being asked to do might be illegal, but who doesn't ask questions to keep earning a paycheck. It could also be a more extreme example of someone explicitly asking to be kept out of the loop on something so they could later claim ignorance in the event of a criminal investigation.

When a crime requires that the defendant act knowingly or with intent to be convicted, conscious avoidance can be used as an alternative way of showing the requisite knowledge or intent. In a conscious avoidance case, prosecutors generally ask for a jury instruction stating this to the jury and then argue how the defendant's actions and the benefits they gained showed that they were deliberately avoiding the truth.

The problem with such a theory of prosecution is that it risks being applied to innocent behavior. A trusting supervisor or loyal worker may never suspect wrongdoing. Someone who is less competent may not fully realize the ramifications of what they or the people they are working with are doing. Further, an innocent person who is deliberately kept out of the loop may find that the trickery used to dupe them is later used as evidence of them avoiding the illegally activity.

The key to avoiding a criminal charged based on conscious avoidance is proactivity. Obviously, if you have zero knowledge this will be hard to do, but things are rarely so black and white. Usually, there will be something you don't understand or are concerned about. In an honest business, you should be able to easily ask your supervisors or coworkers to help you better understand a project. You don't need to suggest wrongdoing but only that you'd like to better understand how it works.

If you don't get satisfactory answers, you can be more direct. You can say you are concerned with compliance because someone misinterpreting what's going on might view it as criminal. You can also raise your concerns up the chain of command if you feel strongly. Whistleblowers receive legal protection from adverse action by employers, and even without whistleblower protections, no job is worth jail time. If you still believe that there is criminal activity, you can or may even be required to bring it to the attention of local authorities. You might also seek the advice of an attorney. If there ever is a criminal investigation, you'll be able to document the steps you took as a way of showing you weren't trying to hide from the truth.

About The Author
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Mr. Capozzi has a diverse profession — he is a practicing criminal defense attorney, civil litigator, instructor of law, author, historian, and entrepreneur. He owns and operates the Law Office of Nicco Capozzi, teaches law, has written several scholarly articles and a book entitled Law School in ...

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