On the Mental State of Consciousness of Wrongdoing
ON THE MENTAL STATE OF CONSCIOUSNESS OF WRONGDOING
SAMUEL W. BUELL 0
LISA KERN GRIFFIN 0
0 Copyright © 2012 by Samuel W. Buell and Lisa Kern Griffin. This article is also available at
This stands for the general rule, reflected in all Anglo-American law, that an
actor’s claim that she did not know her conduct was prohibited by the criminal
law is irrelevant to her liability.1
On the other side are the limited exceptions to this rule. If the crime itself
requires knowledge of the law as an element of the offense, lack of such
knowledge of course negates liability.2 If error about a legal matter—for
example, whether one has lawful possession of property under her jurisdiction’s
contract law—negates a mental state required for liability—for example,
specific intent to deprive another of property—then such error or ignorance
prevents conviction.3 If the law, directly or through official spokespersons,
states that conduct is not criminal, liability for such conduct may not be
imposed due to a principle of estoppel.4 Finally, if criminalization of conduct
comes so far out of left field as to be a truly alarming surprise to any responsible
citizen, the Constitution (perhaps) prevents imposition of liability for that
This standard framework for dealing with legal knowledge captures only
two sides of a broader, four-sided problem. Stated more generally, the problem
is not what to do with claims of “mistake of law,” but what to do in general
about an actor’s mental state regarding the normative valence of her actions.
That mental state can consist in an actor adverting to the normative significance
of her actions, or in her failing to advert to such matters. The possibilities, and
their respective doctrinal manifestations, are represented in the following
Actor does not believe normatively wrongful, or has no belief about normative status
Actor believes normatively wrongful
(1) Ignorance of the law
is not a defense.
mistake-oflaw defenses recognized.
(3) “Consciousness of
“guilty knowledge” is a
basis for imposing
(4) Mistaken belief
about illegality or
wrongfulness does not
1. E.g., MO. REV. STAT. § 562.031(1) (2010).
2. E.g., Cheek v. United States, 498 U.S. 192, 609–10 (1991).
3. JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 175–76 (5th ed. 2009).
4. E.g., MO. REV. STAT. § 562.031(2) (2010).
5. Lambert v. California, 355 U.S. 225, 228–29 (1957).
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Criminal law and theory have mostly worked through the problem of
mistake of law—what to do with the actor who seeks to defend against liability
on grounds that she did not advert, or adverted mistakenly, to the legal (and
oftentimes moral) status of her conduct.6 Usually she loses (area (1)).
Occasionally, an exception applies and her argument prevails (area (2)). What
has escaped sufficient analysis is that criminal law sometimes treats this same
matter of mental state as an affirmative justification for imposing criminal
responsibility—as something more like an element of liability, not just a ground
for an occasionally available defense.
Returning to the Table above, area (3)—the inculpatory use of an actor
having adverted to the significance of her conduct—is a lively one in the
criminal law. It includes the increasingly common practice in the field of white
collar crime of pointing to an actor’s consciousness of wrongdoing as a
justification for imposing liability under broad or vague statutes that carry risks
of overdeterrence or punishment of blameless actors. Upon examination, the
general principle represented by area (1) turns out to have two flip sides. One is
the familiar point that sometimes mistake of law is a defense, represented by
area (2). The other—and presently more interesting—flip side is that
knowledge of wrongfulness sometimes inculpates. If you will, sometimes
“knowledge of wrongdoing is an offense.” This concept falls into area (3).
The idea that sometimes “knowledge of wrongdoing is an offense” may, like
the ignorance of the law maxim, have an exception, represented in area (4) of
the rubric above. One plausibly could maintain that a mistaken belief about the
illegality or wrongfulness of one’s conduct should not increase the probability of
liability, or the degree of condemnation or punishment. Any aggravation of
responsibility for such beliefs, the argument would go, should require an
objective inquiry to determine whether the actor accurately perceived
prevailing norms. The rule that “pure legal impossibility” is a bar to criminal
liability rests on the belief that one who thinks she is committing a crime but is
doing nothing unlawful (the famous Lady Eldon who lawfully imported English
lace mistakenly thinking she had procured prohibited French lace7) should not
be punished because of legality-related constraints on crime definition. A
practice of criminalizing “believed offenses” would have neither visible
boundaries at any given moment nor finite limits over time.
This project concerns more than situating the idea of consciousness of
wrongdoing within the theory and doctrine of substantive criminal law. The
attraction of this idea and its contemporary use in the field of white collar crime
enforcement demand attention to real and serious problems of evidence and
decisionmaking in the adjudication process. Recent descriptive work in social
science reveals that facts are “found” in the courts not through a linear and
entirely analytic process but through a holistic examination of competing
narratives, open to subjective considerations and susceptible to biases. When it
comes to mental state, adjudicators do not so much reconstruct it as construct it
anew from preexisting paradigms of wrongdoing. Moreover, the most difficult
white collar cases are those in which mental state alone marks the boundary
between criminal and noncriminal conduct. Such cases require a rigorous
evaluation of mental state but simultaneously invite a highly associative
exercise in factfinding. And the consciousness of wrongdoing concept enacts
templates for wrongful conduct and stories of moral failing that pose particular
dangers to accuracy. Clarity about the content of a consciousness of wrongdoing
element itself, together with attention to the mechanics of introducing and
reviewing evidence of its existence, could mitigate these concerns.
Part II begins by explaining how the concept of consciousness of
wrongdoing could work as a feature of substantive criminal law, at the levels of
both theory and doctrine. A series of conceptual steps will be described and
tentatively attempted, with the caveat that several of the normative
considerations raised here are major ones, and merit the kind of deep
exploration in punishment and political theory that would not fit in this
preliminary discussion. Part III includes a discussion of the recent application of
the concept of consciousness of wrongdoing in prosecution and adjudication of
white collar offenses. Finally, Part IV takes up the considerable complications
of proof and decisionmaking that anyone drawn to this emerging idea must
confront and seek to manage.
CONSCIOUSNESS OF WRONGDOING AS INCULPATORY
Before addressing the conceptual questions this topic raises, the reader
might be assisted by an example illustrating one version of the inculpatory use
of an actor’s mental state toward the normative significance of her conduct.
Lauren Stevens held an in-house position as an attorney for a major
pharmaceutical corporation. The Department of Justice (DOJ) and the Food
and Drug Administration (FDA) were investigating the company for possibly
engaging in the criminal promotion of one of its antidepressant drugs as
assisting in weight loss, a treatment for which the drug lacked FDA approval.8
The FDA transmitted a request for relevant documents, and the company
assigned Stevens to handle the response.9 The government later concluded that
Stevens withheld and altered documents responsive to the FDA’s request, while
representing to the government that the company’s compliance with the
document request had been complete.10
The DOJ obtained an indictment charging Stevens with violating a statute,
8. United States v. Stevens, 771 F. Supp. 2d 556, 559 (D. Md. 2011).
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18 U.S.C. § 1519, making a felon of anyone who “knowingly alters, destroys,
mutilates, conceals, covers up, falsifies or makes a false entry in any record,
document, or tangible object with the intent to impede, obstruct, or influence
the investigation or proper administration of any matter within the jurisdiction
of any department or agency of the United States.”11 Stevens gained access to
the minutes of the grand jury proceedings and then moved to dismiss the
indictment on the ground that the prosecutor erroneously instructed the grand
jury on the mens rea requirements of this statute.12 Her specific claim was that
she relied on the advice of outside counsel in deciding how to respond to the
FDA’s document request, and that the prosecutor failed to correctly explain
how that reliance could negate the mens rea required for guilt under this
obstruction of justice statute.
A federal district judge dismissed the indictment.13 His reasoning went as
follows: Good faith reliance on advice of counsel negates a mens rea element if
that element is one of “specific intent,” requiring “intentional or willful”
conduct—as opposed, for example, to a mental state of mere knowledge or
“general intent.” The mens rea requirement of the above statute was just such
an element because (in an arguably strained parsing of the text) the statute
required that the actor proceed “knowingly . . . with intent to impede, obstruct,
or influence.” This language, according to the judge, “clearly require[s]
consciousness of wrongdoing,” a form of “evil intent.” If the statute were not
limited to those “conscious of the wrongfulness of their actions,” he reasoned, it
could “reach inherently innocent conduct, such as a lawyer’s instruction to his
client to withhold documents the lawyer in good faith believes are privileged.”
In-house counsel’s good faith reliance on an outside lawyer’s advice that the
FDA’s request was properly complied with would, of course, negate that mens
rea.14 The prosecutor’s instruction to the grand jury failing to explain that was
This decision was, of course, a win for the defendant.15 But she did not
11. 18 U.S.C. § 1519 (2006).
12. Stevens, 771 F. Supp. 2d at 564–65.
13. Id. at 568.
14. It is interesting that the district judge relied heavily on the Supreme Court’s ruling in Arthur
Andersen LLP v. United States, 544 U.S. 696 (2005), that a different obstruction statute carrying a mens
rea term of “corruptly” required proof of “consciousness of wrongdoing” for a conviction. Not only
does section 1519 of Title 18 lack the term “corruptly,” but the legislative history of this relatively
recent statute shows that Congress intentionally omitted that term from section 1519 in an effort to
make proof of mens rea less difficult in document destruction cases than it had been under the statute
employed in Andersen. See JULIE R. O’SULLIVAN, FEDERAL WHITE COLLAR CRIME: CASES AND
MATERIALS 437–40 (2d ed. 2003)
(comparing 18 U.S.C. § 1519 with 18 U.S.C. § 1512)
. This is
suggestive evidence, at the least, for the proposition that, in the white collar context, adjudicators
believe that the problem of separating justifiably criminal cases from the otherwise legitimate realms in
which they take place transcends the particulars of statutory construction.
15. The dismissal of the indictment was without prejudice. Stevens was reindicted (presumably
following more fulsome legal instructions in the grand jury). The case proceeded to trial, but the judge
dismissed it upon close of the government’s case-in-chief on ground of insufficient evidence, chastising
the prosecutors for having brought a case that “should never have been prosecuted.” Judge Acquits
prevail on the ground that mistake of law is a defense to obstruction of justice.
Instead, she secured a dismissal because the court found that the statute only
applies to an actor who is aware at the time that her conduct is wrongful, and
that a person who relies “in good faith” on the advice of a lawyer would not
have such a mental state.16 Consciousness of wrongdoing, according to this
court, is effectively an element of liability.
A. The Function of Consciousness of Wrongdoing as a Mental State
Elements of criminal offenses perform sorting functions. Their purpose,
ideally anyway, is to limit punishment to all and only those actors whose
conduct corresponds with the justifications giving rise to the prohibition
containing those elements. Consider a burglary definition that includes as an
element the attendant circumstance that the structure the actor broke and
entered was a “dwelling,” defined as a person’s habitation. The purpose of such
an element might be to limit punishment for that burglary offense, on
retributive or deterrent grounds, to those actors whose conduct presents the
particular risks and harms associated with entry into structures either occupied
by others or in which others have particular security and privacy interests. In
keeping with the justifications for such a law, all burglars of dwellings and only
burglars of dwellings should be punished for this particular offense.
Requiring, as an element of liability, proof of something like consciousness
of wrongdoing means that all and only those actors who formed that mental
state, and whose conduct satisfies other elements of the offense, are eligible for
punishment. A judge like the one in Stevens’ case confronts a problem of
entanglement that is particularly challenging in the context of white collar
crime, in contrast to most forms of “street” crime. How do laws and legal actors
identify those who merit punishment from among a group of actors engaged in
a class of activities, like marketing of financial products or production of
industrial goods, that are quite welcome?
In the white collar context, conventional mental state tools often do not
provide enough traction to handle the hard cases. For example, it is
questionbegging to say that the mens rea for obstruction of justice is “the specific intent
to obstruct justice” or that the mens rea for fraud is “the specific intent to
defraud.” One can only have a purpose (“conscious object”) to engage in
particular actions or to cause particular results. If the accompanying action is
described with a legal concept (“fraud,” “obstruction of justice”), then a
purpose requirement only leads back to the question of what is criminal—that
is, what counts as “fraud” or “obstruction of justice.”
Further specifying the operative legal concept in terms of actions will not
House Corporate Counsel on Charges Arising out of FDA Investigation, 89 CRIM. L. REP. (BNA) 249
(May 25, 2011).
16. See Samuel W. Buell, Good Faith and Law Evasion, 58 UCLA L. REV. 611, 627–53 (2011), for
in-depth treatment of the concept of good faith as a mental state and its relationship to consciousness of
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always suffice. Fraud might consist in deception, but not all deception is fraud—
and certainly not all deception is criminal fraud. Obstruction of justice might
consist in thwarting of legal process, but not all thwarting of legal process is
obstruction of justice. Unless one were to eschew completely the project of
defining white collar offenses, and rely instead on highly rule-based regimes
that would be easily evaded,17 only mens rea tools can effectively address this
entanglement problem. The mental state of consciousness of wrongdoing has
appeal, in part, as a tool that can help disentangle white collar offenses from
their background settings.
B. Justifications for the Mental State of Consciousness of Wrongdoing
For a liability rule to have a logical function does not necessarily mean the
rule is justified. The question of justification here can be put two ways: Why are
actors aware of the wrongfulness of their actions blameworthy or good objects
of punishment for instrumental reasons? Or, why are actors not aware of the
wrongfulness of their actions not sufficiently blameworthy or not sufficiently
good objects for punishment on instrumental grounds?
The question is when such a mental state might be an additional justification
for punishment for a particular form of conduct carrying its own (sufficient or
not) justifications for criminalization. In the example of the Stevens case, there
is no contention that the in-house attorney should be treated as a criminal any
time she does anything she knows is wrongful. There is a view, however, that
she should be treated as a criminal for concealing evidence in a manner that
obstructs justice when, and only when, she knows that it is wrongful to engage
in such concealment.
Consciousness of wrongdoing may increase blameworthiness in part because
it ensures that the violator received sufficient notice. This assertion might seem
confusing at first. One view holds that the notice requirement—an essential part
of any account of how a legal system comports with legality requirements—is an
individual right grounded in a conception of what one is owed by the state in a
liberal order. That right includes the ability to go about one’s affairs free from
fear of the unfairly surprising appearance of state coercion, or, as in Hart’s
formulation, the right to be respected as a “choosing being.”18 A second view
points out that this account of notice lacks bite in practice—at least under
existing Supreme Court precedent—and concludes that requirements of clarity
and definiteness in law must be meant primarily to constrain enforcement
discretion and prevent abuses.19
There is a third—perhaps inverted—way to see the notice requirement: as a
necessary condition of blameworthiness and responsibility. If a person is not
provided with adequate notice that her conduct is criminal, the problem is not
so much that she deserved to receive such notice ex ante as that she does not
deserve to be punished ex post for what she did. If she was aware of the
normative significance of her conduct, however, she does deserve to be
punished. The point of notice was the point at which she chose to cross a
normative boundary and to exempt herself from general constraints.
The significant event is not the receipt of notice itself but, rather, the
postnotice transgression. The existence of adequate notice goes at least some of the
way to assuring us that a person did in fact make a decision to transgress. Thus,
a person who is genuinely conscious of wrongdoing is someone whom legal
actors can punish without fear that the criminal law is being brought down upon
the innocent or undeserving—a particularly prevalent anxiety in the arena of
white collar crime.20
The argument for desert just sketched, of course, must confront the claim of
philosophical anarchists that the question whether to obey authority can add no
normative force to a person’s deliberations about the merits of any action she
might contemplate.21 Put in terms of the present discussion, a choice to do
something wrongful is not made more or differently wrongful because another
person or authority has designated it so after deliberating on its wrongfulness. It
is either wrongful or it is not.
The analysis here does not purport to join the debate on the existence and
significance of authority. In the face of skepticism about authority, two points
suffice to maintain the provisional moral significance of a mental state like
consciousness of wrongdoing. First, a prominent feature of this concept in the
criminal law is that its connection to positive law (and therefore state authority)
is only partial. To be aware that conduct is wrongful is not necessarily the same
thing as to be aware that it is illegal. Indeed, the use of this mental state in the
criminal law might have features congenial to the anarchist position: If a
person’s desert ought to turn on the moral wrongfulness of her conduct without
reference to the particular edicts of the state, and if her desert is to be
aggravated by her self-awareness of wrongfulness, then that mental state too
should depend upon awareness of moral (rather than legal) wrongfulness.
Second, there is a compelling argument—at least limiting the anarchist
20. See, e.g., United States v. Panarella, 277 F.3d 678, 698 (3d Cir. 2002) (concluding that
defendant’s efforts to enlist another to conceal prior misrepresentations undermined any claim of
inadequate notice in prosecution under flexible mail-fraud statute); United States v. Dial 757 F.2d 163,
170 (7th Cir. 1985) (Posner, J.) (concluding in prosecution of commodities brokers for “trading ahead”
of their clients that the defendants’ “elaborate efforts at concealment” provided strong evidence of
their “consciousness of wrongdoing,” thereby eliminating any concern that the flexible mail-fraud
statute was being extended beyond the boundaries of fair notice).
21. See generally Scott J. Shapiro, Authority, in THE OXFORD HANDBOOK OF JURISPRUDENCE
AND PHILOSOPHY OF LAW 382 (Jules Coleman & Scott J. Shapiro eds., 2002) (summarizing the
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CONSCIOUSNESS OF WRONGDOING
view—that if a state satisfies a set of necessary and sufficient conditions as an
acceptable liberal democracy, then to disregard laws of the state is at least
defeasibly wrongful simply because they are laws of the state.22 The reason is
that the socially necessary and fair power-sharing arrangement of a liberal
democracy depends on mutual forbearance and obedience. For a citizen to take
such an arrangement as imposing no obligating force of its own, the argument
goes, is to arrogate power to herself. And that constitutes a dereliction of her
prior commitments as a citizen in a system that has afforded her rights,
privileges, and benefits, as well as a derogation of the equality and autonomy of
others. In terms of the present topic, it is that much more blameworthy to have
arrogated that power to oneself after having deliberated on the question
whether the contemplated conduct is among those behaviors society has
required one to forego, and after having concluded that one indeed is called
upon to restrain oneself in the circumstances.23
Consciousness of wrongdoing finds support in an instrumentalist conception
of the criminal law as well. As Scott Shapiro explains in his elegant new book,
law would utterly fail to perform its function (as a “planning institution” in
Shapiro’s conception) were it understood to be non-compulsory and were
noncompliance widespread.24 The dominant “defensive” accounts of the rule of
law, in Shapiro’s terms, give short shrift to the rule of law’s instrumental
benefits. If the law did not comport itself with fundamental requirements of the
rule of law (setting aside for the moment debate about the particulars of those
requirements), the law would be useless in addressing the problems of morality
and collective action that give rise to a society’s need for law and other legal
Shapiro, of course, stands on the shoulders of many—from H.L.A. Hart to
contemporary game theorists—in his observations about the utility of the
22. See id. at 434–39; see also Dan Markel, Retributive Justice and the Demands of Democratic
Citizenship, VA. J. CRIM. L. (forthcoming 2012) (manuscript at 37–39), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1930443 (summarizing arguments of Shapiro and
others contra the anarchist position on authority).
23. Cf. Gideon Yaffe, Excusing Mistakes of Law, 9 PHILOSOPHERS’ IMPRINT 1, 10–17 (2009). Yaffe
advances a somewhat similar argument in his explanation of why mistakes about legal matters excuse
so much less commonly in criminal law than do mistakes about factual matters. He grounds his analysis
in the wrongfulness of the sort of deliberation involving faulty normative (as opposed to factual) beliefs
that are characteristic of defendants who assert errors about matters of law. Id. Yaffe further contends
that a person who has pursued a behavior after deliberating the very question of whether others
constrain themselves in the face of a normative principle against that behavior is especially at fault for
morally wrongful deliberation. This, he says, suggests the value in including proof of awareness of
illegality as an element in certain malum-prohibitum offenses. Id. at 21. But cf. Alexander A. Guerrero,
Deliberation, Responsibility, and Excusing Mistakes of Law, AM. PHIL. ASS’N NEWSL. ON PHIL. & LAW
(forthcoming), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1911448 (criticizing
Yaffe for being opaque about the concept of deliberation and arguing that the relevant question is the
degree of fault in actors’ epistemic efforts, whether they be directed at matters of law or fact).
24. SCOTT J. SHAPIRO, LEGALITY 212 (2011).
25. Id. at 396.
mutual forbearance and cooperation that characterize legal systems enjoying
widespread compliance.26 The question for an account of the mental state of
consciousness of wrongdoing is not whether benefits flow from encouraging
legal compliance and the belief that legal compliance is widespread. The
question is whether it is especially beneficial to focus sanctioning, among all
who do not comply with legal or social norms, on those who contemplate
noncompliance before acting.
At a conceptual level, the answer does not seem difficult. Those who think
about the normative significance of their conduct will tend to be persons who
contemplate potential sanctions and will therefore be more amenable to
deterrence. That is just an application of the general, though contestable,
insight that mens rea inquiries have utility because persons who act
intentionally are more likely to consider a deterrent message before acting. And
there is a further benefit. Those whose voluntary compliance with legal and
other norms is somewhat contingent on the belief that compliance is
widespread—and that they therefore are not chumps who alone obey the law—
will expect sanctioning authorities to deal especially seriously with those who do
not comply in willful defiance of known norms. Focusing sanctioning on such
actors will be especially important to maintaining the loyalty of those whose
obedience is provisional.
Complications nonetheless arise in working out how reliance on a mental
state like consciousness of wrongdoing is likely to play out behaviorally. It is not
clear that attaching sanctions, or aggravating them, on this basis will
communicate the desired deterrent messages. If one who is aware of
wrongdoing is selected for criminal sanction on that basis, the message should
be clear: Do not violate legal or moral norms when confronted with the choice
whether to do so. But, at least when strategic actors are the law’s audience—as
often is the case in the field of white collar crime—the message might end up
being different: Act like you are not doing anything wrong and you will not be
sanctioned. (It has been said that the best way to rob a bank is to own one,27 but
maybe it suffices just to act like you own the place.) Thinking incorrectly that
you are doing something wrong, and acting accordingly, makes it more likely
that you will be found to have done something wrong. Being ruthless and
remorseless—and acting like you have done nothing wrong—may ultimately
make it easier to prove your innocence.
What about possible acoustic separation in this area between conduct rules
26. See HART, supra note 18, at 50 (arguing that criminal sanctions against noncompliant actors
assure compliant actors that their compliance is not foolish). See generally Dan M. Kahan, The Logic of
Reciprocity: Trust, Collective Action, and Law, 102 MICH. L. REV. 71 (2003) (arguing that individuals
are more likely to behave cooperatively when they perceive others to be doing so); Richard H.
McAdams, A Focal Point Theory of Expressive Law, 86 VA. L. REV. 1649 (2000) (suggesting that the
law solves coordination problems by providing a focal point around which individuals can shape their
27. WILLIAM K. BLACK, THE BEST WAY TO ROB A BANK IS TO OWN ONE: HOW CORPORATE
EXECUTIVES AND POLITICIANS LOOTED THE S&L INDUSTRY (2005).
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like “do not obstruct justice” and decision rules like “do not act with
consciousness of wrongdoing”?28 Primary actors in the white collar area tend to
have well-informed lawyers, who might reduce acoustic separation. But the
defense bar seems more apt to express the concern that clients may be held
liable under vague rules than to advocate the strategy that clients can protect
themselves by behaving as if they are not doing anything wrong.29 One good
solution to the vagueness concern is to design sanctioning regimes that apply in
“fuzzy” areas of the law so that punishments fall only on those who had the
opportunity to reflect upon the wrongfulness of their conduct yet chose to press
forward in spite of such reservations. Sanctioning regimes that fall only on those
who had the opportunity to reflect upon the wrongfulness of their conduct yet
chose to press forward serve both an inculpatory and a protective function—at
the same time and for the same reasons.
More serious instrumental difficulties might be, first, that one could allow
people’s beliefs about normative boundaries to dictate where those normative
boundaries lie, even if such beliefs are idiosyncratic or mistaken; and, second,
that this approach could be unacceptably underinclusive, leaving out actors who
are obtuse to norms and who might merit sanction, in part because of what that
obtuseness says about them and about their choice to engage in the relevant
The first worry relates to area (4) in the Table supplied in the Introduction,
covering the area in which an actor’s adverting to the legal or moral significance
of her actions might not be inculpatory. If one believes oneself to be crossing
normative boundaries when one in fact is not, one may not be entirely free of
moral fault. After all, one has decided to do something in spite of believing it to
be wrong. But for the same reasons that a case of “pure legal impossibility”
cannot be a crime, one would not want to sanction such a person.30 Allowing
criminal liability to float free from settled legal and social norms, tethered only
to the idiosyncratic beliefs of a series of individual actors, vests too much
discretion in the hands of enforcers and other actors in the legal system.
The answer to the instrumental worry about idiosyncratic beliefs, therefore,
is to insist that any liability rule turning on proof of consciousness of
wrongdoing include both subjective and objective elements. An analogue would
be the doctrinal concept of “dishonesty” found in British theft and fraud law,
under which a jury must find both that “according to the ordinary standards of
reasonable and honest people what was done was dishonest” and that “the
defendant himself must have realised that what he was doing was by those
The second concern—about underinclusion with respect to obtuse or
deluded actors—does not have a ready countermeasure. It is a cost of any legal
regime that requires proof of a mental state like awareness of wrongdoing. But
it should be remembered what led to analysis of this subject in the first place: an
observable tendency of the legal system to look for evidence of consciousness of
wrongdoing when struggling to draw lines between criminal and acceptable
conduct. This happens because of a desire to avoid two other states of affairs:
overinclusion in the form of punishment of undeserving actors engaged in
socially welcome conduct, and massive underinclusion in the form of
abandoning the project of criminal sanctions entirely in sectors of activity in
which it is difficult to draw lines. Marginal underinclusion from leaving out
actors who are obtuse or deluded with respect to norms is only one weight
among several to be considered in measuring costs against benefits.
C. The Object of the Consciousness of Wrongdoing Mental State
In criminal law, mental states are not coherent unless directed at objects. If
knowledge is required for liability, of exactly what must the actor be aware? If
intent is required, what is it that the actor must have as her conscious object? If
the crime is based on recklessness, just what risk must the actor appreciate and
choose to disregard? And so on.
To be conscious of wrongdoing is, of course, to be aware of it. But much will
turn on what precisely is meant by “wrongfulness,” “wrongdoing,” “guilt,” or a
similar formulation. The requirement of awareness of wrongfulness would
become successively less demanding as one moved down a hierarchy of
specificity that might be summarized as follows:
(a) Violates a specific provision of law giving rise to prosecution
(b) Violates some provision of criminal law
(c) Violates some provision of law imposing some form of sanction or
(d) Is wrongful under prevailing legal, professional, or other contextual
(e) Is wrongful under generally applicable moral norms
Levels (a) and (b) are not what the concept of consciousness of wrongdoing
is driving at in the law of white collar crime. Those levels are familiar from the
materials on exceptions to the “ignorance of the law” maxim. Levels (c), (d),
and (e) on the hierarchy are of greater interest. The concept of consciousness of
wrongdoing tends to be deployed in cases involving crimes such as fraud and
obstruction of justice, for which it is settled that knowledge of illegality is not
required for liability. The point is to extend analysis to the question whether the
actor was on notice of wrongfulness in a broader sense. The question is just how
much broader. Should any sense of immorality count, as under (e)? Or does the
actor’s thinking have to be about the conduct’s status under a narrower set of
(A.C.) at 345.
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CONSCIOUSNESS OF WRONGDOING 145
criteria that include the law and perhaps similar normative structures governing
the actor’s conduct, as under (c) or (d)?
It could be enough for the actor to have known that the law had something
to say about her conduct, even if she did not know of the specific law she is
charged with violating, or perhaps that the matter was subject to criminal
punishment or even a form of civil or regulatory liability. For example, a law
might make it a crime intentionally to release a harmful substance into the
public waterways, knowing that the substance is subject to legal regulation.
Or it could be sufficient for the actor to be aware that her behavior had the
general status of “wrongful.”32 This could encompass both wrongfulness in the
sense of illegality under positive law, and wrongfulness in the sense of violating
some broader set of norms governing the actor’s behavior and the context in
which she acts. For example, a law might make it a crime, such as fraud, to
engage in a particular form of deceptive conduct in a market in which such
conduct is widely understood to be wrongful. One illustration would be failing
to disclose a known hazardous condition beneath a property in a market for real
estate, if it is customary to do so.
The most relaxed formulation, in the sense of being easiest to establish,
would be one requiring only awareness that one’s conduct is morally
problematic. To act with consciousness of wrongdoing would simply be to act
knowing that one is engaged in any sort of moral transgression. For example,
the law might make it a crime to hurt another, or to lie to another, or to acquire
another’s property, knowing that it is wrong to do so in the way in which one
has done it.
Obviously, the broader the law reaches in defining the object of the mental
state, the less work a requirement of consciousness of wrongdoing will do in
narrowing the class of persons eligible for punishment under a given regime. A
criminal law covering a broad category of transgressions on the interests of
others (or the state) that are “known to be morally wrong” would too closely
resemble forms of common law crime long since dispatched as inconsistent with
basic notions of due process.33 Such laws might also tend to overcriminalize.
Many forms of lying, for example, might be known to be morally wrong by the
speaker but nonetheless completely lack justification as cases for
32. See United States v. Cullen, 454 F.2d 386, 390–91 (7th Cir. 1971) (distinguishing intent to
engage in conduct that constitutes the crime, from intent to engage in conduct that one knows is
wrongful, from intent to further some ultimate goal by engaging in conduct that constitutes the crime).
But see United States v. Freed, 401 U.S. 601, 612–16 (1971) (Brennan, J., dissenting) (rejecting
discussion of “consciousness of wrongdoing” as likely to be confused with requiring knowledge of law,
in contravention of the basic principle that ignorance of the law is no defense).
33. See, e.g., Commonwealth v. Mochan, 110 A.2d 788 (Pa. Super. Ct. 1955) (reviewing conviction
under a statute punishing “any offense . . . punishable either by statutes or the common law,” in a
jurisdiction in which common law prohibited, inter alia, “any act which directly injures or tends to
injure the public to such an extent as to require the state to interfere and punish the wrongdoer”).
34. See Bryan H. Druzin & Jessica Li, The Criminalization of Lying: Under What Circumstances, if
Any, Should Lies Be Made Criminal?, 101 J. CRIM. L. & CRIMINOLOGY 529 (2011) (mounting an
On even brief analysis, then, level (e) on the hierarchy above appears to be
a poor candidate for a mental state relevant to criminal liability. The interesting
and open question lies in the region of levels (c) and (d). Is it possible, and in
any event desirable, for the criminal law in some contexts to both relax and
tighten requirements relating to awareness of illegality or wrongfulness? Can
there be a useful mental state that consists of more than awareness of some
form of censure but less than awareness of criminal illegality? That would
appear to be the target at which the idea of consciousness of wrongdoing is
A full-throated theoretical defense of consciousness of wrongdoing as an
element of criminal liability is beyond the ambitions of this particular project.
What has been said to this point, it is hoped, is sufficient to suggest that the idea
might fit with general principles of substantive criminal law. It remains to
examine some evidence of the idea’s use in recent white collar adjudication, and
then turn to the problems adjudication presents.
CONSCIOUSNESS OF WRONGDOING AND WHITE COLLAR CRIME
Recall that in Stevens, the case of the pharmaceutical attorney charged with
obstructing justice by withholding documents from the FDA, the judge decided
that the prosecutor had to prove that she knew she was doing something
wrongful—not just that she intentionally kept from the FDA documents she
knew were responsive.35 This was so in spite of statutory text that uses no such
formulation and purports to cover anyone who “knowingly” withholds
documents with intent to impede a matter within the government’s
jurisdiction.36 The judge said “knowingly . . . with intent to [obstruct]” implies a
requirement of consciousness of wrongdoing because otherwise a person who
legitimately resisted an official legal adversary through lawful means would be
treated as a criminal.
The court clearly did not intend to adopt a requirement that actors charged
with obstructing justice be aware of violating any specific criminal law, and
probably not the criminal law at all. In Arthur Andersen LLP v. United States,37
the Supreme Court confronted the problem of how to draw a line between
document destruction occurring routinely in the course of business that may in
part be motivated by a desire to minimize damaging evidence in potential
future litigation—seen as not blameworthy—and document destruction that is
admittedly contrarian argument that lies should be criminalized, but limiting criminalization claim to
lies that are egregious and seriously harmful); see also Lisa Kern Griffin, Criminal Lying, Prosecutorial
Power, and Social Meaning, 97 CAL. L. REV. 1515 (2009) (suggesting that liability for false statements
in investigations should turn in part on the objective impact of the deception).
35. United States v. Stevens, 771 F. Supp. 2d 556, 561–62 (D. Md. 2011).
36. 18 U.S.C. § 1519 (2006).
37. 544 U.S. 696, 698–703 (2005).
No. 2 2012]
CONSCIOUSNESS OF WRONGDOING
wrongfully encouraged (as in Andersen38 and in the similar case of United States
v. Quattrone39) just as a firm learns of the existence of a regulatory inquiry and
anticipates a subpoena for its records. In reversing the conviction, the Court
ruled that the jury should have been instructed that the prosecutor had to prove
not only that the firm’s agents intended to interfere with a Securities and
Exchange Commission investigation but also that they knew it was wrongful to
There is of course some fuzziness, if not circularity, in saying that document
destruction with an eye on litigation moves from the routine to the criminal
when those engaged in it know they are doing something wrongful. But the
Court clearly meant to leave the consciousness of wrongdoing requirement
somewhat open-ended and thus did not suggest that it amounted to a
requirement that knowledge of the law be proved.41 After all, the very issue
before the Court was what the law was on destruction of documents in
anticipation of a subpoena.42
A clear statement of this distinction comes from a decision of the Alaska
Supreme Court reversing the conviction of a miner who had raised advance
funds for future deliveries of gold.43 He was charged with selling unregistered
securities. The relevant statute could be violated only “willfully,” which the
court said could mean one of three things: (1) to “act intentionally in the sense
that he is aware of what he is doing”; (2) to “be aware that what he is doing is
illegal”; or (3) to “know that what he is doing is wrong.”44
The court appeared to appreciate the greater need to parse mental state
requirements that arise with white collar offenses. Some crimes, the court said,
39. 441 F.3d 153 (2d Cir. 2006). In Quattrone, the defendant was charged with obstruction of justice
for endorsing and forwarding to employees an e-mail urging routine but neglected purging of files, just
after the defendant was informed of a grand jury investigation concerning his group’s commercial
activities. The court concluded that the evidence was sufficient to establish his wrongful intent in
forwarding the e-mail, id. at 169–74, but that the trial court’s instructions to the jury on the required
element of a “nexus” between the defendant’s conduct and an official legal proceeding were erroneous
and required reversal, id. at 176–80.
40. Andersen, 544 U.S. at 705–08. The case was not retried so it is difficult to speculate about
whether a jury might have found the requisite “consciousness of wrongdoing” in Andersen’s
destruction of large quantities of its Enron records in the midst of an SEC accounting inquiry and just
before receiving a subpoena for those records.
41. Id. at 706.
42. Id. at 703–04; see also United States v. Doss, 630 F.3d 1181 (9th Cir. 2011) (in determining
wrongfulness for purposes of an obstruction of justice statute, drawing a line between the defendant
asking his co-conspirator wife to exercise her marital privilege not to testify against him (not wrongful)
and the defendant suggesting to his co-conspirator–victim in a prostitution ring that “it would be bad
for her” if she did not exercise her Fifth Amendment privilege to refuse to testify (wrongful)); United
States v. Fakih, No. S1 05 CR.713(SHS), 200
6 WL 1997
479, at *2
(S.D.N.Y. July 18, 2006)
a “consciousness of wrongdoing” requirement under an obstruction statute was satisfied where the
defendant coached a witness in a manner that could be interpreted as encouraging the witness to lie and
to pretend that a conversation had not occurred).
43. Hentzner v. State, 613 P.2d 821 (Alaska 1980).
44. Id. at 825.
LAW AND CONTEMPORARY PROBLEMS [Vol. 75:133
are ones that “reasoning members of society regard as condemnable” (malum
in se).45 Those crimes always carry with them awareness of wrongdoing.
Therefore, a requirement that the defendant have merely intended the actions
he performed—possibility (1) above—would suffice to satisfy a defeasible
requirement of conscious wrongdoing.46
Other crimes, however, are malum prohibitum, meaning that they arise in
situations of ambiguity, complexity, and lack of clear social awareness and
consensus about condemnation. With such crimes, “more than mere conscious
action is needed to satisfy the criminal intent requirement,” and “criminal
intent in the sense of consciousness of wrongdoing should be regarded as a
separate element of the offense.”47 The Alaska Supreme Court supported its
analysis in the unregistered securities case with citation to some of the
numerous federal cases in the area of securities crimes that have similarly found
a requirement of consciousness of wrongdoing.48
The Supreme Court has long talked about awareness of wrongdoing as a
foundational requirement of criminal responsibility, by explaining the
defeasibility of that requirement in a limited category of low-penalty, strict
liability offenses that the Court has unhelpfully called “public welfare”
offenses.49 The idea is that no one can be held (seriously) criminally responsible
without knowing that they are doing something wrong. Most of the time,
especially with a core of basic crimes, an adjudicator can easily infer this
awareness of wrongfulness from an actor’s mere awareness of her actions. With
some kinds of crimes, however, the inference is not so easy. So the adjudication
45. Id. at 826.
46. Id. at 821. The Alaska courts have found this requirement to be more explicitly and definitively
contained in the state’s constitution than has the Supreme Court with respect to the federal
Constitution. Id. at 826–29.
47. Id. at 826; see also Kinney v. State, 927 P.2d 1289 (Alaska Ct. App. 1996) (concluding in
bootlegging prosecution that proof of the defendant’s knowledge of the law was not required, even
though the crime was malum prohibitum, because it is common knowledge that one needs a license to
48. Hentzner, 613 P.2d at 827–28; see also United States v. Kaiser, 609 F.3d 556, 567–70 (2d Cir.
2010); United States v. Reyes, 577 F.3d 1069, 1079–80 (9th Cir. 2009); United States v. Charnay, 537
F.2d 341, 352 (9th Cir. 1976); United States v. Peltz, 433 F.2d 48, 54–55 (2d Cir. 1970). But see Mueller
v. Sullivan, 141 F.3d 1232, 1235 (7th Cir. 1998) (stating that proof of consciousness of wrongdoing is not
required in the context of securities crimes, at least as a matter of constitutional due process).
49. United States v. Park, 421 U.S. 658, 670–74 (1975); United States v. Freed, 401 U.S. 601, 607–10
(1971); Morissette v. United States, 342 U.S. 246, 250–63 (1952); United States v. Dotterweich, 320 U.S.
277, 284–85 (1943); United States v. Balint, 258 U.S. 250, 251–54 (1922); see also Fabritz v. Traurig, 583
F.2d 697, 700 (4th Cir. 1978) (reversing the conviction, on due process grounds, of a parent for causing a
child’s death through delayed medical attention because the evidence was “utterly bare of proof of a
consciousness of criminality during her bedside vigil”); Perez v. State, 803 P.2d 249, 250–51 (N.M. 1990)
(stating that strict liability crimes are exceptions to the fundamental principle that “evil intentions” or
“consciousness of wrongdoing” are required for criminal liability); Commonealth v. Ewansik, 520 A.2d
1189, 1190 (Pa. Super. Ct. 1987) (stating that criminal-negligence liability is an exception to the general
requirement of “subjective awareness of wrongdoing”); Commonwealth v. Heck, 491 A.2d 212, 233–24
(Pa. Super. Ct. 1985) (although “the harshness of criminal punishment is fitting only for . . . consciously
inflicted wrongs, and so traditionally the criminal law has concerned itself exclusively with conscious
wrongdoing,” in cases of criminal negligence “the law presumes wantonness”).
No. 2 2012]
CONSCIOUSNESS OF WRONGDOING 149
process must include an explicit, additional requirement that the prosecutor
prove awareness of wrongdoing. A background feature of criminal
responsibility is brought to the fore and made part of doctrine to ensure that it
is not elided.
It is not helpful to refer to the situations in which this occurs as malum
prohibitum offenses. The category is neither self-defining nor self-executing and
lends itself to cases being included and excluded by fiat. It is more helpful to
think about situations in which the requirement of consciousness of wrongdoing
comes to the fore as involving behaviors that are neither uniformly wrongful
nor uniformly not wrongful because they occur in contexts of entanglement.50
Adversarial behavior is generally welcome; only some of it should be treated as
unwelcome obstruction of justice. Sale of investment products is generally
welcome; only some of it should be treated as unwelcome fraud. Industrial
production that creates byproducts is generally welcome; only some of it should
be treated as involving intolerable release of pollutants.
Criminalization in these kinds of areas necessarily involves some uncertainty
and some postponement of precise line drawing from the legislating stage to the
enforcement stage. A contestable factual inquiry into consciousness of
wrongdoing serves two purposes. It helps draw the line itself: An actor’s
awareness of her own wrongdoing sends a strong feedback signal to the legal
system that the conduct is on the undesirable side of the line. And this inquiry
resolves the question whether the actor has a cognizable complaint that her
punishment is unjust because line drawing was postponed until ex-post
adjudication: The actor who is aware of her own wrongdoing necessarily
“received” some notice, at least in the sense that she had occasion to consider
the normative significance of her conduct and refrain from it had she wished.
It should likewise be apparent why the formulation used in these contexts is
ordinarily not “knowledge of illegality.” Because the nature of these offenses
requires some precise line drawing, a requirement that the object of an actor’s
awareness be preexisting positive law would prevent flexibility and evolution in
that line drawing process. “Wrongdoing” or “wrongfulness” or “wrong”
describe broader categories that can accommodate illegality but need not be so
One can see a similar line of thinking in how courts identify the relatively
small subgroup of torts that merit quasi-criminal treatment in the form of
punitive damages. Decisions frequently speak of “consciousness of
wrongdoing” or “awareness of wrongdoing,” often described as a deliberate
decision to cause harm, as a necessary condition for affirming an award of
50. Nor can the problematic category always be designated according to the particular type of
crime definition or statute involved. For example, some obstruction of justice cases do not present any
difficulty of entanglement. See, e.g., United States v. Aguilar, 242 F. App’x 239, 245 (5th Cir. 2007)
(unpublished) (ruling that a “consciousness of wrongdoing” instruction was not required, under the
decision in Andersen, in a case in which the defendant flatly instructed a witness to lie).
LAW AND CONTEMPORARY PROBLEMS
punitive damages on appeal.51 This is true as well in the law governing the
insanity defense in criminal law. Most formulations of the dominant M’Naghten
test stand for the proposition that one is excused from criminal responsibility if,
provided other elements of the defense are satisfied, one lacks the capacity to
know (or, in some jurisdictions, to “appreciate”) the wrongfulness (or, in many
jurisdictions, the “criminality”) of one’s conduct.52
It would be an overstatement to say that modern American criminal law has
entirely abandoned the old idea of “general mens rea”—standing for the
proposition that a guilty (or, in older formulations, “evil” or “wicked”) mind is
necessary to ascription of criminal responsibility53—in favor of the Model Penal
Code’s tidy and more precise hierarchy of mental states.54 It remains the case
that the state hesitates to punish, even where relevant cognitive states like
knowledge and intent might be present in strict terms, in the absence of a
conclusion that the actor knew what he was doing was wrongful.
CONSCIOUSNESS OF WRONGDOING AND ADJUDICATION
Consciousness of wrongdoing has normative appeal, in part, because it
expands mens rea requirements in a class of cases where some argue they are
insufficiently robust.55 It could serve as an umbrella concept that gives content
and coherence to many common law terms scattered throughout the federal
criminal statutes that have no settled or clear meaning,56 and could at the same
51. See, e.g., Alleman v. YRC, 787 F. Supp. 2d 679, 684, 686 (N.D. Ohio 2011) (stating that punitive
damages require “conscious wrongdoing,” described as being “conscious of a high probability that
substantial harm would occur”); Hoffman v. Stamper, 843 A.2d 153, 208–09 (Md. Ct. App. 2004)
(stating that defendant must have acted with “consciousness of . . . wrongfulness” to establish the
“actual malice” required for punitive damages for the tort of fraud); Darcar Motors of Silver Spring,
Inc. v. Borzym, 841 A.2d 828, 838 (Md. Ct. App. 2004) (“Where the defendant converts property with a
consciousness of wrongfulness of that conversion, he or she possesses the requisite improper motive to
justify the imposition of punitive damages.”).
52. E.g., 18 U.S.C. § 17 (2010); MODEL PENAL CODE AND COMMENTARIES § 4.01 (1985); see
DRESSLER, supra note 3, at 346–57. Many, of course, have criticized this doctrinal approach to the
problem of how criminal law should deal with mental illness. A trenchant example is HERBERT
FINGARETTE, THE MEANING OF CRIMINAL INSANITY 153–56 (1972); see also ROBERT F. SCHOPP,
AUTOMATISM, INSANITY, AND THE PSYCHOLOGY OF CRIMINAL RESPONSIBILITY 27–51 (1991);
NIGEL WALKER, CRIME AND INSANITY IN ENGLAND 99–115 (1968).
53. See DRESSLER, supra note 3, at 117–20; United States v. Cordoba-Hincapie, 825 F. Supp. 485,
489–504 (E.D.N.Y. 1993) (discussing at length the history and purposes of the mens rea requirement in
No. 2 2012]
CONSCIOUSNESS OF WRONGDOING 151
time make headway on the central problem of disentangling criminal behaviors
in financial and market settings from their often benign background settings.
Those benefits can be realized, however, only if the adjudication process has the
capacity to correctly identify the defendants who acted with the requisite
awareness of wrongful conduct. And if inculpatory cognition is viewed as
tantamount to a statutory offense element—as the foregoing analysis suggests it
has been and perhaps should be—“finding” or “proving” that mental state takes
on even greater significance.
A. Reaching Decisions by Reading Narratives
Adjudication of mental state is never a question of what an actor was
actually thinking at the time of the offense but rather of what the actor did that
then allows for imputation of a legal construct called mens rea. When required
to determine whether a defendant has culpable awareness, adjudicators cannot
look into the defendant’s mind; they look instead at the factual context, and
then beyond that context at external constructs predating the facts at issue. In
the absence of the proverbial red hands, they read the signals that familiar
narratives send. These often come from what Steven Winter calls “observed
prototype effects,” or “frames, scripts, schemas, scenarios, stock stories, and
idealized cognitive models.”57 Recognizing prototypical stories helps factfinders
whenever they must answer questions such as when defendants knew what,
whether they acted with predisposition or premeditation, and how aware they
were of risk and wrongfulness. When it comes to factual interpretation, both the
questions and the answers often “depend largely upon one’s choice (considered
or unconsidered) of some overall narrative as best describing what happened or
how the world works.”58
Although the rules of evidence themselves presume the rationalist tradition
of deductive proof and logical relevance,59 and evidence scholarship largely
focuses on probability theories and the objectivist account,60 recent social
science on adjudication reveals more subjective processes at work. It is
increasingly common to describe the adversarial process of trial as a set of
competing narratives that “become suitors for the jury’s imagination.”61
According to a descriptive theory developed by empirical psychologists, jurors
use a story model to reach decisions rather than engaging in linear, probabilistic
Meaning of “Corruptly” Within the Federal Criminal Law, 31 J. LEGIS. 129 (2004).
57. STEVEN L. WINTER, A CLEARING IN THE FOREST: LAW, LIFE, AND MIND 87 (2001).
58. ANTHONY G. AMSTERDAM & JEROME BRUNER, MINDING THE LAW 111 (2000) (emphasis
59. See FED. R. EVID. 401 (defining relevance as “tending to make a material fact more or less
probable than it would be without the evidence”).
60. See, e.g., Kenworthey Bilz, We Don’t Want To Hear It: Psychology, Literature and the Narrative
Model of Judging, 2010 U. ILL. L. REV. 101,
) (noting that the “dominant view of how people
process evidence and draw conclusions is linear and Bayesian”).
61. ROBERT P. BURNS, A THEORY OF THE TRIAL 164 (1999); cf. AMSTERDAM & BRUNER, supra
note 58, at 12 (identifying mens rea determinations such as “willful ignorance” and “malice
aforethought” as categories “extracted from narrative”).
LAW AND CONTEMPORARY PROBLEMS
reasoning. The idea that trials rehearse conflicting narratives, and that jurors
necessarily draw on their own values in processing those narratives, was first
advanced by Lance Bennett and Martha Feldman.62 It gained quick acceptance
and the “story model” label after Nancy Pennington and Reid Hastie’s jury
simulations. Those studies revealed that jurors develop stories using the trial
evidence, their own background knowledge of “what typically happens in the
world,” and “generic expectations about what makes a complete story.”63 They
then reach a verdict in light of the “fit” between the narrative presented and the
verdict categories described.64 More recent iterations of the story model include
Michael Pardo and Ronald Allen’s “explanation-based account,” according to
which jurors identify the most coherent theory of the case and then use an
“abductive reasoning process of inference to the best explanation” to reach a
decision.65 Dan Simon’s work on coherence-based reasoning also complicates
the idea that factfinders identify elements of an offense through a purely
objective or linear process.66 He explains the “dual-process theory of
persuasion”67 and describes decisionmaking as “the product of a cognitive
mechanism that operates bidirectionally.”68 Inferences flow not just from
“individual pieces of evidence toward a computed judgment” but in the reverse
direction as well. They form part of a “global comparative assessment” that
produces a verdict consistent with “the relative plausibility of the vying
These concepts are familiar to empirical social scientists and increasingly
discussed in scholarship on the process of decisionmaking in the adversary
system. For the most part, however, they have not influenced questions of
evidentiary procedure, let alone crime definition. But stories alone may not
offer the level of precision that adjudicating a guilty mind requires, and it is
worth considering whether articulating a more distinct factual predicate for
liability, and then designing adjudication to privilege an analytic approach to
identifying that predicate, could produce more accurate results.
B. Finding Mens Rea
Mens rea determinations are particularly well-suited to a narrative approach
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CONSCIOUSNESS OF WRONGDOING
and at the same time highly susceptible to its shortcomings.70 The story model
illuminates how mens rea emerges through a decisionmaking process that is not,
and cannot be, entirely analytic. Indeed, the model underscores an old concern
that mental state is never more than a label, has no correspondence to objective
reality, and merely serves to organize facts within a certain archetype. Is it even
possible, as an evidentiary matter, to ascertain whether a perpetrator
appreciated wrongfulness? Occasionally, there is direct evidence of this state of
mind in the form of a damaging confession or a particularly telling round of
correspondence. And testimony from intimate associates can, at times, shed
light on the beliefs, attitudes, and intentions of the defendant. In almost every
case, however, adjudicators must sift through the surface level of conduct for
signals about internal mental processes. The important thing with respect to
mens rea may be the decision rule only. It may be a normative assessment of
guiltiness, and a doctrinal marker, but not necessarily an empirical fact.
The idea of “finding” mens rea itself—and the cases and commentary speak
in terms of “finding” it—suggests that it does not stem directly from the facts of
the case but, rather, is imposed on cases according to preexisting models. And
this assessment may be peculiarly susceptible to erroneous interpretation
because factfinders must “infer the past mental state of a defendant they do not
know as he acted in a way they did not see.”71 In order to do so, they import
preexisting paradigms, supplement the given information in a case with
assumed facts and structures, and factor their own personal experiences and
emotional responses into the judgment.
Because the source material for narrative-based assessments of culpability
includes these reference points, processing circumstantial evidence of intent
may also inspire heuristic thinking. Heuristics are often described as mental
shortcuts that simplify judgments under uncertainty.72 The dependence on
familiar stories, for example, aggravates the natural inclination to interpret
evidence in a fashion that supports existing preferences, beliefs, and theories.
Factfinders are more likely to doubt evidence that conflicts with a preexisting
paradigm (for a narrative like a cover-up story) and to interpret what is
ambiguous as consistent with it. Similarly, investigators, courts, and jurors may
make coarse judgments relying on the representativeness heuristic—the
similarity between the directly observable conduct and schemes or prototypes
that fit the category of knowing wrongdoing.73 A cover-up story triggers other,
memorable incidents of avoidance by guilty parties. Those memories are more
vivid than background causes for the conduct—and thus tend to hold more
LAW AND CONTEMPORARY PROBLEMS [Vol. 75:133
sway—according to the availability heuristic.74 Attribution errors pose another
danger.75 It is always easier, for example, “to see order and structure in the lives
of others at a remove than it is to be certain of meaning and purpose when
confronted first hand with the uncontrollable contingencies of one’s own life.”76
And the salience of attitudes and characteristics tends to dominate factors like
circumstances and environment when decisionmakers evaluate intent. The
dispositional information can be processed spontaneously rather than through
effortful deliberation and therefore takes precedence.
While awareness of the difficulties of accurately perceiving mental state has
increased, so too has its central importance in the adjudication of certain white
collar cases. Suppose, for example, that a court finds that an actor “clearly had
the intent to obstruct justice” because her removal of documents from the office
for shredding at home, safe from the eyes of those at work, showed that she
“knew she was wrongfully destroying evidence.” One way to describe this case
would be to say there were two forms of cognition in this actor’s mind: an
“intent to obstruct justice” (consisting of her thinking about and her attitude
toward what the shredding would accomplish), and an “awareness of
wrongdoing” (consisting of her thinking about how others, narrowly or broadly,
would assess her actions in the circumstances). Another way to describe this
case would be to say that there is only the actor’s conduct and its context
(taking the documents home and shredding them under the circumstances), and
then the adjudicatory process’s conclusion that a rational actor engaging in that
conduct in that context would be someone who deserves blame for a wrongful
choice or who could be deterred by the prospect of sanction.
George Fletcher’s famous theory of the law’s migration from concepts of
“manifest criminality” to concepts of “subjective criminality” likely has bearing
here.77 Actions that alone speak to the actor’s blameworthiness used to hold a
lot more weight in the criminal law than they do now. Contemporary crime
definition focuses more closely on state-of-mind inquiries that are said to
differentiate between blameworthy instances of particular conduct and
instances of the same conduct that do not deserve punishment. This
development is nowhere more pronounced than in the area of white collar
offenses, as evidenced by Fletcher’s examination of the development of the law
of property crimes.
With crimes like fraud and obstruction of justice, the law is operating—
probably not yet in stable equilibrium—somewhere between manifest
No. 2 2012]
CONSCIOUSNESS OF WRONGDOING
criminality and subjective criminality. It is mostly subjective. For example, only
mental state inquiries can ultimately sort between fraud and ordinary aggressive
salesmanship. But the subjective inquiry clings to a search for outwardly
observable actions—those things like “badges of fraud” manifesting an actor’s
consciousness of wrongdoing—in deciding whether subjective guilt is present.
Of course mental states, as described in criminal law doctrine, are legal
constructs designed to perform an important practical function in ex-post
adjudication. Given their function, those constructs depend overwhelmingly on
a process of imputation from conduct. But there is no reasonable alternative
given the requirements of criminal adjudication.78 Even if the present process
for discovering mental state only dimly glimpses its truth or essence, it is a
process that must be passed through on the way to establishing an individual’s
mental state in the legal system. With respect to white collar offenses, mens rea
may be “evidentiary all the way down.” But, in practice, the constitutive and
evidentiary accounts relating to the idea of awareness of wrongfulness can
accommodate each other.
How, then, do factfinders perceive this signal, or find mens rea, in a given
case? Some recent white collar prosecutions suggest that they rely heavily on
“tells” consistent with stock narratives to identify the requisite state of mind. At
first, this may appear unobjectionable. After all, adjudication is widely
understood to involve story-telling,79 and knowledge of other plots helps
factfinders process the circumstantial evidence providing the only possible
showing of intent.80 When adjudicators, or even investigators, attempt the
intersubjective evaluation of a perpetrator’s state of mind, the only question
they can really ask is what would have been in their minds if faced with the
same situation.81 Answering that question depends entirely on inferences from
the circumstances surrounding the offense conduct. Although direct and
circumstantial evidence in theory have the same worth, and are equally subject
to misinterpretation,82 the additional inferential steps that circumstantial
evidence requires can increase the possibility of error. Those steps are often
visualized as a chain of inferences leading from a fact in the world to a judgment
about what happened.
This is a familiar concept in evidence law: that probative value often
LAW AND CONTEMPORARY PROBLEMS
depends on linking inferences about facts together.83 Despite an old debate
concerning whether inferences can be stacked,84 the length of any particular
chain is generally an issue of weight rather than admissibility. As Wigmore
explained: “All departments of reasoning, all scientific work, every day’s life
and every day’s trials proceed upon such data.”85 And the problem of inferential
reasoning is not limited to circumstantial evidence; relevance can emerge over
multiple steps with regard to any evidentiary proposition.86 Even an ex-post
confession or an ex-ante statement of intent depends on inferences of the
speaker’s honesty and sincerity.
C. Proving Consciousness of Wrongdoing
As an evidentiary matter, chains of inference that lead to awareness of guilt,
or include a link consisting of consciousness of wrongdoing, have long been
thought relevant in a variety of contexts. Possession of a guilty mind, for
example, sometimes plays a role when there is a dispute as to the identity of a
perpetrator. In Wigmore’s words, “[A] criminal act leaves usually on the mind a
deep trace, in the shape of a consciousness of guilt, and from this consciousness
of guilt we may argue to the doing of the deed by the bearer of the trace.”87 This
assertion—once described as having “almost irresistible appeal”88—has
supported admission of, and argument from, many and varied types of evidence
in criminal prosecutions, such as use of an alias,89 threats to a witness,90 lies
about whereabouts,91 threats to a prosecutor,92 and flight from law
83. George F. James, Relevancy, Probability and the Law, 29 CAL. L. REV. 689, 690 (1941) (noting
that evidence has probative value if it tends to “prove or disprove any proposition” that “forms a
further link in a chain of proof the final proposition of which is provable in the case at bar”).
84. EDMUND M. MORGAN, BASIC PROBLEMS OF EVIDENCE 188 (1962) (“[T]he
inference-uponinference rule] is usually taken to mean that if the existence of one fact is found by inference from the
existence of another, the inferred fact cannot be used as a basis for inferring still another fact.”).
85. 1A JOHN HENRY WIGMORE, EVIDENCE § 41 (Peter Tillers ed., 1983).
86. See Ronald J. Allen, The Myth of Conditional Relevancy, 25 LOY. L.A. L. REV. 871, 879 (1992)
(“[A]ll cases of relevancy are cases of conditional relevancy.”).
87. WIGMORE, supra note 85, at 544.
88. Robert M. Hutchins, Some Observations on the Law of Evidence—Consciousness of Guilt, 77
U. PA. L. REV. 725, 727 (1929).
89. Newman v. United States, 28 F.2d 681, 683 (9th Cir. 1928) (noting that evidence of use of an
alias may be relevant in a criminal prosecution “as importing a consciousness of wrongdoing which [the
defendant] desired to conceal”).
90. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 897–98 (9th Cir. 1996) (holding that a defendant’s
threats to witnesses were relevant to show a consciousness of guilt that would negate his claim that he
acted without premeditation and with an honest belief in the necessity of acting in self-defense).
91. State v. Jones, 474 So. 2d 919, 929–30 (La. 1985) (holding defendant’s conflicting statements
about his whereabouts on the night of the crime were admissible to show his “awareness of
wrongdoing” and “guilty mind”).
92. United States v. Copeland, 321 F.3d 582, 598–99 (6th Cir. 2003) (holding that defendants’
pretrial threats against a prosecutor had “some probative value” with respect to defendants’
consciousness of wrongdoing and guilt, although such threats supported only a “weak inference” due to
several possible motives for the threats).
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CONSCIOUSNESS OF WRONGDOING 157
enforcement.93 As with many longstanding ideas in the law of evidence, this one
depends upon empirical assumptions that may be fallible.94
All evidence, and all adjudication, requires some act of interpretation, and
this is particularly true with regard to intent. There is an even larger problem of
remove, however, with respect to consciousness of wrongdoing in a white collar
case. Faced with the question whether a killing is intentional, factfinders can fall
back on the idea that defendants are “presumed to intend the natural and
probable consequences of their acts.”95 A violent act typically bespeaks a desire
or intent to harm, or at least the understanding that harm is likely to result. But
white collar offenses do not always have “natural” consequences. There may be
fraudulent financial transactions in which gain to the ultimate victim was, ex
ante, at least as probable as loss. That makes the line between desired or
intended harm, and what is merely a harmful side effect of an otherwise
wellintended act, a very difficult one to draw.96 Although it may be possible to
determine with some confidence whether a defendant acted knowingly,
secondary questions of what a defendant anticipated or desired when she acted
are much harder. The entanglement problem in white collar crime looms large
again here—at the evidentiary rather than crime definition level. It is plainly
empirically true, and well known to any factfinder, that most violent deaths
caused by other human beings are wrongful, and therefore inferences of
criminality in such cases are strong, easily accessible, and often unyielding to
alternative inferences. Not so at all with business deals that go awry.
Picture again an inferential chain, with consciousness of wrongdoing at the
end of a series of links. In the case of violent crime, the chain may be quite
short. The actus reus of physically harming someone will, in the great majority
of cases, imply the intent to do so. The actus reus of defrauding someone, or of
hindering an investigation, involves a more intricate series of connections. Each
of those connections may or may not be a valid inference, and the additional
steps invite misinterpretation. Document destruction, for example, often
appears to lead in a straight line to consciousness of wrongdoing when
obstruction is at issue. But it is routine in many businesses, and it is ordinarily
done without any intent to obstruct. It signals a culpable state of mind only if
certain inferences are accurate. The Stevens case97 again provides a useful
LAW AND CONTEMPORARY PROBLEMS
illustration. There, the court concluded that consciousness of wrongdoing was
an element of liability. In order to correctly identify that element, the factfinder
had to reason from Stevens’s act of withholding documents through several
inferential steps, including that Stevens intentionally withheld the documents,
that she recognized them as responsive to the request, that she believed herself
under an obligation to turn them over, and that she concealed their contents in
order to hinder the investigation. While her conduct, on the surface, appears
obstructive, many background details could break links in this chain. What if
Stevens inadvertently left the documents out of her response? What if she in
fact believed that the documents were irrelevant? What if Stevens received
advice from counsel—as she did in the actual case—that led her to believe she
could legitimately withhold the documents? Any of those possibilities would
render a necessary inferential link to culpability a misstep.
Inferential reasoning via familiar stories about guilty minds is most
concerning where consciousness of wrongdoing serves as the determining
liability factor or marks the line between civil and criminal sanction. In many
cases, it serves not just as circumstantial evidence that the defendant committed
the offense conduct but as the element that renders the defendant’s (often
otherwise undisputed) conduct a crime. And jurors’ basic competence at
determining “what happened”98 is tested in close cases with ambiguous evidence
and amorphous legal standards—as fraud and obstruction cases tend to be. A
coherent narrative in these cases is not necessarily a correct one. What makes it
coherent is that it accords with expectations about how people usually act.
Criminal cases, however, often require factfinders to confront behavior that is
out of the ordinary. Shortcuts enable adjudicators to make the up or down
choice that a verdict requires, but they also take three-dimensional events and
render them in two dimensions.
1. Recurring Signals of Inculpatory Cognition
Consider some of the specific paradigms at work in cases where
consciousness of wrongdoing may or may not exist as a matter of descriptive
reality but clearly appears as a familiar narrative. In obstruction prosecutions,
for example, decisionmakers must distinguish between anticipated and
unintended consequences to identify the requisite inculpatory knowledge.
Obstruction can encompass ordinary conduct like following document retention
policies, attempting to mitigate exposure to liability when questioned by law
enforcement, or withholding embarrassing information.99 When there is no
direct access to a defendant’s level of consciousness of wrongdoing, factfinders
work backwards from what the defendant did, and interpret her likely state of
No. 2 2012]
CONSCIOUSNESS OF WRONGDOING
mind in light of their own experiences and expectations. In the Stevens case,100
the advice of counsel caused an unusually clean break in the chain of inference
leading to a guilty mind. But many obstruction cases allow prosecutors to
project very elastic theories of culpability onto the evidence. And some
repeating patterns of mental state evidence have emerged. Courts have deemed
sufficient, for example, behavior that could be labeled flagrant misconduct, a
classic cover up, or conscious avoidance.
First, the blatant quality of a defendant’s wrongdoing may provide the
requisite link to consciousness of wrongdoing. A recent federal indictment in
Chicago suggests that efforts to deceive government officials—such as falsifying
lab reports, submitting fraudulent customs forms, and disguising transactions
with coded language—can be so extensive that it is even possible to obstruct an
imagined future investigation that may or may not come to pass.101 Judge
Posner’s analysis in United States v. Black on remand from the Supreme Court
likewise expresses this idea that conduct must be intentionally obstructive when
there is something glaringly obvious about it.102 The court found “compelling”
Black’s removal of thirteen boxes of documents from his office, at times and in
a manner supposedly designed to avoid surveillance cameras, in part because
those bare facts fit squarely within broader narratives about knowing
A subset of the cases concerning flagrant misconduct involves stark
inconsistencies or unusual economic windfalls. Courts have been careful about
accepting financial incentives as a proxy for mens rea and have rejected the idea
that they are inherently probative of fraud. General income manipulation, such
as selling an asset to book earnings by a certain date, does not provide sufficient
evidence of criminal culpability, but financial gains that “go far beyond the
usual arrangements of compensation based on the company’s earnings” can.104
Alex Stein discusses the related idea that the boundaries between criminal and
non-criminal bribery might be drawn by characterizing the nature of the
exchange. According to his analysis, factfinders attempting to discern
intentional wrongdoing might also look for a pecuniary benefit not available on
the open market, which would signal a gain that “cannot be accidental.”105
Proxies for mens rea that relate to the overt nature of a defendant’s actions
again arise from Fletcher’s distinction between “manifest” and “subjective”
LAW AND CONTEMPORARY PROBLEMS
criminality.106 Flagrancy cases, though arising in the white collar realm which
typifies the modern movement of the criminal law to subjective fault inquiries,
demonstrate legal actors’ persistent uneasiness about subjective inquiries and
the continued appeal of resting criminal convictions on “manifestly” wrongful
A second cluster of factual scenarios that gives rise to inferences of
inculpatory cognition involves “cover ups.” A cover up can simultaneously be
the obstructive conduct and send a strong evidentiary signal that it was
undertaken with awareness of a violation. Barry Bonds, for example, was found
guilty of obstruction of justice based on a rambling response to a single question
during his immunized testimony before the grand jury. The evasive quality of
the response itself must have supplied the consciousness of wrongdoing,
because there was no admissible evidence that even established his knowledge
that he received human growth hormones and steroids.107
Other cover ups are not charged as the separate offense they could be—like
a material false statement—but instead supply the mens rea for a different
underlying charge. Destruction of records, fictitious accounts, and creative
accounting such as retroactive reconciliation of receipts108 often contribute to
narratives of conscious wrongdoing. Sometimes detection avoidance really does
help identify a guilty mind, as in the case of a local police chief who altered
reports and sought the means to dispose of a gun.109 In other situations,
however, the evasive conduct is subject to conflicting interpretations, but the
prototypical cover-up stories that factfinders can call to mind make the
ambiguous scenarios appear clear. The image of a cover up that is “worse than
the crime” comports with a powerful narrative woven through cases, scholarly
commentary, the media, and popular culture. Law violators are often portrayed
as actively obstructing the subsequent investigation of their crimes:
Just as the state invests in detecting their violations, [violators] invest in avoiding that
detection. They lie, they shred, they bribe. They refrain from taking notes. They go out of
their way to communicate only orally, in person, in private. They wear gloves and masks. They
work under cover of darkness. They open foreign bank accounts. They form offshore entities.
They launder tainted money. They launder bloody socks.110
In many cases, of course, this is an accurate cognitive model, but in others it just
No. 2 2012]
CONSCIOUSNESS OF WRONGDOING 161
resonates with factfinders so strongly that the narrative overrides a more logical
approach to the evidence.111
Taking cover prospectively, through conscious avoidance of guilty
knowledge, also enacts a narrative consistent with a guilty mind. Defendants
can signal mens rea by constructing excuses in advance of misconduct, by
declining to keep certain records, or by consulting with lawyers or accountants.
The idea of engineered ignorance surfaced in the Black case as well. Judge
Posner commented on the implausibility of a large, sophisticated, public
corporation failing to keep records of a transaction unless it was trying to hide
something.112 According such extensive evidentiary significance to the failure to
confront incriminating facts focuses too narrowly on one story of culpability and
may cause factfinders to overlook alternative explanations. Even when this
conduct stems from a compliance effort, it can appear like the plan or desire to
get away with malfeasance. Indifference to incriminating knowledge can have
external causes—including institutional and structural ones like reporting
hierarchies—and may not accurately signal intentional ignorance. Many
lawyers, for example, avoid note-taking out of an abundance of caution, rather
than in anticipation of wrongdoing. Again, there is an intricate chain of
inference: from the defendant’s failure to acquire knowledge to the defendant’s
deliberate avoidance of it, and from there to a fair chance to avoid culpability
and a blameworthy decision not to take it.
Willful blindness has both formal legal significance and this factual function.
When a crime requires proof of “knowledge” and there is no direct evidence of
the defendant’s knowledge, the jury is permitted to find the knowledge element
if it concludes that a defendant was “deliberately ignorant.”113 In theory,
establishing willful blindness requires more than a showing of recklessness.114
But in practice, facts that would only be sufficient for reckless disregard may
enact a paradigm of consciousness of wrongdoing and therefore satisfy the
unstated (but ostensibly higher) mens rea requirement of inculpatory cognition.
Boot-strapping from facts supporting a lower mental state requirement to a
narrative that justifies finding consciousness of wrongdoing points to the
potentially misleading quality of these familiar patterns. In the flagrancy
context, for example, objective blameworthiness suffices for liability, regardless
of the defendant’s subjective state of mind, because the conduct at issue implies
LAW AND CONTEMPORARY PROBLEMS
mens rea. With respect to conscious avoidance, the failure (or refusal) to grasp
the obvious, in light of the conduct occurring around a defendant, demonstrates
that she should have known (objectively) but not that she did (subjectively). If
consciousness of wrongdoing is to supply a level of mens rea that appropriately
draws boundaries of blameworthiness—and, in doing so, is to place some limits
on official discretion—this standard requires both subjective and objective
elements. If instead it is applied in the absence of a clear statement as to its dual
nature and according to legal-folk ideas about the sorts of acts that wrongdoers
commit, then it may lead to liability inconsistently, and based on superficial
associations between the facts and familiar stories.115 A project aimed at
disciplining the process of disentangling white collar offenses from their
background settings could end up being more permissive and error-prone than
the status quo ante.
2. Stories of Moral Failing
A further source of disquiet about a consciousness of wrongdoing standard
is that the narrative it most likely enacts is a classic story of moral failing, which
will commonly be presented through forms of evidence that, regardless of their
doctrinal imprimatur, amount to the kind of proof of character that clear
thinking about evidentiary processes strongly disfavors. It is impermissible to
introduce a defendant’s prior crimes or bad acts to show his propensity to act in
conformance with those other acts.116 Such evidence is admissible, however,
when it fits within a theory other than propensity, such as “motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.”117 Intent is the most permissive of these alternative purposes that
elide the ban on propensity evidence, and an amorphous standard like general
inculpatory cognition could make an even broader array of character evidence
admissible. Once introduced into the case, character issues contribute to the
other motivational processes that underlie psychological blame as well.118
Factfinders tend to overweigh character, and narrative expectations
aggravate that tendency. Stories are compelling in part because characters act
on identifiable motivations. Their “natures” are revealed in detail and to an
extent never available in life.119 The idea that trials are effective only if they tell
a story that “correspond[s] to the jurors’ image of what a story should be, an
image drawn from the most numerous and vivid stories they read, hear, and
115. It is worth noting, however, that while a standard that is too supple provides insufficient notice
and poorly sorts defendants, scholars have identified some virtues of a very general requirement of “a
guilty mind” or “a vicious will” in terms of the freedom those common law terms once accorded jurors
to account for moral considerations and to acquit in cases in which “criminal punishment seemed, on
balance, unfair.” WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 30 (2011).
116. FED. R. EVID. 404(a).
117. Id. 404(b).
118. Janice Nadler, Character, Blaming as a Social Process: The Influence of Character and Moral
Emotion on Blame, 75 LAW & CONTEMP. PROBS., no. 2, 2012 at 1.
119. Samuel R. Gross, Make-Believe: The Rules Excluding Evidence of Character and Liability
Insurance, 49 HASTINGS L.J. 843, 853 (1998).
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CONSCIOUSNESS OF WRONGDOING 163
see” ignores this space between “fictional people” and “ordinary mortals.”120
And the most vivid stories are ones of moral failing. Although defedants can
present some “positive” character evidence, it is rarely compelling. Most
factfinders have their own redeeming qualities and index of good deeds, but few
will have committed prior bad acts as salient as past crimes. Not many stock
narratives are consistent with “consciousness of innocence.”
Moreover, while character is a reliable predictor of conduct in stories,
experimental work demonstrates that most character traits have nothing like
the explanatory and predictive power they are traditionally accorded.121
Opening the door to increased consideration of criminal history and moral
failings likely means that more defendants will be convicted for the
characteristics they possess, rather than what they actually did, or even what
they really thought.122 Factfinders may make hasty judgments based on
incomplete information about character, and then apply those judgments to
decisions about the significance of actions. And, in keeping with the
fundamental attribution error, they may incorrectly conclude that a defendant is
a wrongdoer acting with inculpatory cognition rather than reacting to
D. Clarifying Standards of Liability and Proof
Thus, when the existence of a guilty mind is the dividing line between
conviction and acquittal, stories are not precise enough. They are governed by
convention rather than empirical verification; they are overinclusive with regard
to the admissibility of evidence; they construct images of what happened rather
than requiring factfinders to logically assess the raw unmediated facts; and they
are overly emotional, which makes the guilty mind unduly easy to discern in an
unattractive character. Consciousness of wrongdoing has the potential—if
treated seriously as a genuine offense element—to clarify and revitalize mens
rea standards in white collar cases. But fuzziness about the standard’s content,
and inviting forms of proof that cause associative processes to overwhelm
rulebased thinking, mean that this standard might do little to address—and could do
much to worsen—the harms of unjustified punishment.124 Furthermore, if its
120. Id. at 852–53.
121. LEE ROSS & RICHARD E. NISBETT, THE PERSON AND THE SITUATION: PERSPECTIVES OF
SOCIAL PSYCHOLOGY 90–91 (1991) (“[P]eople are inveterate dispositionalists. They account for past
actions and outcomes, and make predictions about future actions and outcomes, in terms of the
person—or more specifically, in terms of presumed personality traits or other distinctive and enduring
personal dispositions.”); cf. Michelson v. United States, 335 U.S. 469, 475–76 (1948) (“The inquiry is not
rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and
to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity
to defend against a particular charge.”).
122. See Nadler, supra note 118, at 28 (finding that inferences about the “general virtuousness” of a
person inform the level of blame one accords to that person for a particular pattern of conduct).
123. See generally ROSS & NISBETT, supra note 121 (discussing the fundamental attribution error).
124. Cf. Henry M. Hart, Jr., The Aims of the Criminal Law, 23 LAW & CONTEMP. PROBS. 401
(Summer 1958) (arguing that criminalizing regulatory violations diminishes respect for the law).
LAW AND CONTEMPORARY PROBLEMS
resolution of some difficult lingering questions about mens rea is more apparent
than real, it could distract attention from developing doctrine in other
potentially more fruitful directions.125 A poorly articulated version of the
standard could also heighten concerns about pretextual prosecutions because of
the (still) high level of discretion in the concept and the unpredictability of
A first step toward addressing some of these concerns is to be clear about
the meaning of consciousness of wrongdoing in the sense of how conscious a
defendant would have to be.127 Consider the Supreme Court’s reasoning in the
Fowler case this past term.128 The question before the Court was whether there
was a sufficient federal nexus in a case involving the murder of a police officer
who interrupted preparations for a bank robbery. Section 1512(a)(1)(C) makes
it a federal crime to kill another person with the intent to “prevent the
communication by any person to a law enforcement officer . . . of information
relating to the commission or possible commission of a federal offense.”129 The
Court debated whether conviction requires proof that information would have
been transferred from the victim to a federal law enforcement officer. A key
question was whether the existence of any “reasonably likely” scenario—or any
plausible narrative—that would have involved transmission of the officer’s
observations to federal officials suffices for culpability.130 The difficulty of
pinpointing what inspired the killing, and of setting a proof standard for
demonstrating the relevant motivation, underscores the difficulty of assessing
what occurred to a defendant at a particular moment in any case.131
Substantively, consciousness of wrongdoing could do real sorting work if it is
treated as an element, has subjective and objective dimensions, and requires a
No. 2 2012]
CONSCIOUSNESS OF WRONGDOING
meaningful level of awareness. Fowler ultimately set some limits on speculative
mens rea standards, as the Court held that a showing of a possible or potential
communication to federal authorities by the victim was not sufficient for a
conviction under the witness tampering statute, and that at least a
reasonablelikelihood standard must be met.132 An analogous minimum standard (or
maximum allowable inference) could give consciousness of wrongdoing more
Setting a mental state requirement that is both higher and clearer requires
further attention to the permissible evidentiary inferences that satisfy it.133
Procedurally, aspects of trial and appellate mechanics might contribute to
factual accuracy with respect to mental states. To be sure, trials cannot “get at
the total truth in all its mystery.”134 And particularly with respect to offenses
that turn on state of mind, “being found guilty and being guilty are manifestly
not the same thing.”135 But courts could do more to ensure the soundness of
decisionmaking about mens rea. For example, abundant caution with character
evidence can limit misleading narratives. Moreover, were courts to treat
consciousness of wrongdoing as an element and thus require its proof beyond a
reasonable doubt, they might also counteract the deceptive power of stories by
instructing factfinders not to convict if they perceive a plausible story of
innocence.136 Closer attention to permitted evidentiary inferences could also
raise the consistency of mental state findings. Courts have tended to find
evidence sufficient as long as there is some plausible narrative of guilt, or as
long as “the jury could have accepted a culpable explanation consistent with
proof of defendant’s conduct”137 and have reversed convictions only where there
is a total failure of proof. Reviewing courts in a position to consider a range of
cases involving consciousness of wrongdoing might take a harder look at the
adequacy of recurring fact patterns.
LAW AND CONTEMPORARY PROBLEMS [Vol. 75:133
This is but the beginning of a close examination of two questions at the
forefront of contemporary adjudication of white collar crimes. First, why might
the criminal law treat a person’s awareness of the normative wrongfulness of
her behavior as a de jure or de facto element of liability? The tentative answers
suggested are (1) that such an element narrows liability to persons deserving of
punishment, on a particular account of blameworthiness grounded in
obligations of forbearance in a functional liberal order, as well as generating
potential instrumental benefits; and (2) that so narrowing liability provides a
means for legal actors to deal with the difficult and fundamental problem of line
drawing that plagues the definition and enforcement of many white collar
offenses that are closely enmeshed in legitimate realms of social and economic
Second, can this mental state as to the normative status of conduct reliably
be identified in the process of adjudication? The use of stock narratives and the
tendency to overweigh indicators of moral failing are risks that could render a
consciousness of wrongdoing standard too error-prone to perform its
potentially beneficial function. Substantive attention to the contours of this
standard, and procedural rigor about the admissibility and sufficiency of the
evidence used to prove it, could assist in the idea’s successful performance as a
tool for adjudicators to address the growing challenge of limiting the criminal
law’s application in the white collar realm to cases of well-justified punishment.
6. See DRESSLER , supra note 3 , at 167-81; Dan M. Kahan , Ignorance of Law Is an Excuse-But Only for the Virtuous , 96 MICH. L. REV. 127 ( 1997 ).
7. See Peter Westen , Impossibility Attempts: A Speculative Thesis , 5 OHIO ST. J. CRIM . L. 523 , 538 - 40 ( 2008 ).
17. See Samuel W. Buell , The Upside of Overbreadth , 83 N.Y.U. L. REV. 1491 , 1541 - 53 ( 2008 ), for extended treatment of the problem of narrowness versus breadth in the definition of white collar offenses .
18. H.L.A. HART , PUNISHMENT AND RESPONSIBILITY 22-23 , 49 ( 1968 ).
19. E.g., John Calvin Jeffries, Jr., Legality , Vagueness, and the Construction of Penal Statutes , 71 VA. L. REV. 189 , 206 - 12 , 232 , 245 ( 1985 ).
28. See Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law , 97 HARV. L. REV. 625 , 630 - 34 ( 1984 ).
29. See , e.g., Anna Stolley Persky , Aggressive Justice, ABA J., May 2010 , at 36.
30. See DRESSLER , supra note 3 , at 407-08 ( explaining that according to the legality principle, “we should not punish people-no matter how culpable or dangerous they may be-for conduct that does not constitute the charged offense at the time of the action”).
31. R v. Ghosh, [ 1982 ] 2 All E.R. 689 (A.C.) at 696; see also R v. Feeley, [ 1973 ] 1 All E.R. 341
54. MODEL PENAL CODE AND COMMENTARIES § 2 .02 ( 1985 ).
55. See generally MICHAEL S. MOORE , PLACING BLAME : A GENERAL THEORY OF THE CRIMINAL LAW 548-92 ( 1997 ) (arguing that the choice to violate prohibitions separates those who merit punishment from those who do not ); John Shepard Wiley, Jr., Not Guilty by Reason of Blamelessness: Culpability in Federal Criminal Interpretation , 85 VA. L. REV. 1021 ( 1999 ) (describing the Supreme Court's practice in interpreting criminal statutes of imputing additional mens rea requirements to statutes that could otherwise be violated by a morally blameless person).
56. See , e.g., Arthur Andersen LLP v . United States , 544 U.S. 696 ( 2005 ) (importing consciousness of wrongdoing into the term “corruptly” in the obstruction of justice statute, where that term had done little work before); see also Eric J. Tamashasky, The Lewis Carroll Offense: The Ever-Changing
62. W. LANCE BENNETT & MARTHA S. FELDMAN, RECONSTRUCTING REALITY IN THE COURTROOM: JUSTICE AND JUDGMENT IN AMERICAN CULTURE ( 1981 ).
63. Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 CARDOZO L . REV. 519 , 522 , 528 ( 1991 ).
64. Id . at 521.
65. Michael S. Pardo & Ronald J. Allen , Juridical Proof and the Best Explanation, 27 LAW & PHIL. 223 , 226 ( 2008 ).
66. Dan Simon , A Third View of the Black Box: Cognitive Coherence in Legal Decision Making, 71 U. CHI. L. REV . 511 , 513 - 16 ( 2004 ) ; see also Keith J. Holyoak & Dan Simon, Bidirectional Reasoning in Decision Making by Constraint Satisfaction , 128 J. EXPERIMENTAL PSYCH.: GEN. 3 , 24 ( 1999 ).
67. Dan Simon , The Limited Diagnosticity of Criminal Trials , 64 VAND. L. REV. 143 , 186 ( 2011 ).
68. Simon , supra note 66, at 516.
69. Id . at 560.
70. See CHRISTOPHER SLOBOGIN , PROVING THE UNPROVABLE: THE ROLE OF LAW, SCIENCE AND SPECULATION IN ADJUDICATING CULPABILITY AND DANGEROUSNESS 44 ( 2007 ) (observing that the assembly of narratives “dominates attempts to reconstruct mental state”).
71. Francis X. Shen et al., Sorting Guilty Minds , 86 N.Y.U. L. REV. 1306 , 1307 ( 2011 ).
72. See Amos Tversky & Daniel Kahneman, Availability: A Heuristic for Judging Frequency and Probability, 5 COGNITIVE PSYCHOL . 207 ( 1973 ).
73. See generally DANIEL KAHNEMANN, PAUL SLOVIC & AMOS TVERSKY, JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES ( 1982 ).
74. See , e.g., Jennifer Groscup & Jennifer Tallon, Theoretical Models of Jury Decision-Making, in JURY PSYCHOLOGY: SOCIAL ASPECTS OF TRIAL PROCESSES 41, 55 ( Joel D. Lieberman & Daniel A. Krauss eds., 2009 ); see also DANIEL KAHNEMAN, THINKING FAST AND SLOW 134- 35 ( 2011 ).
75. See generally RICHARD E. NISBETT & LEE ROSS , HUMAN INFERENCE: STRATEGIES AND SHORTCOMINGS OF SOCIAL JUDGMENT ( 1980 ) (describing the fundamental attribution error as the tendency to overvalue dispositional explanations for the conduct of others and undervalue situational ones).
76. WINTER, supra note 57, at 120.
77. GEORGE P. FLETCHER , RETHINKING CRIMINAL LAW 115-22 ( 1978 ).
78. Cf. Stephen J. Morse , Inevitable Mens Rea, 27 HARV. J.L. & PUB. POL 'Y 51 ( 2003 ).
79. See Robert P. Burns , The Rule of Law in the Trial Court, 56 DEPAUL L . REV. 307 , 314 ( 2007 ) (“What do we actually do at trial? We tell different sorts of sharply constrained stories, then criticize them, and then partially reconstruct them .”).
80. Devenpeck v. Alford , 543 U.S. 146 , 154 ( 2004 ) (noting that intent must always be determined by external, objective means); R.A. DUFF, INTENTION, AGENCY AND CRIMINAL LIABILITY: PHILOSOPHY OF ACTION AND THE CRIMINAL LAW 28 ( 1990 ) (discussing the “dualist assumption” that “we must always infer an agent's mental states . . . from the 'external' evidence which is all that is available to us [because] we can have no direct knowledge of another's states of mind”).
81. Shen et al., supra note 71 , at 1314.
82. See , e.g., Holland v. United States , 348 U.S. 121 , 140 ( 1954 ) (noting that circumstantial evidence “may in some cases point to a wholly incorrect result,” but that this is “equally true” of direct evidence).
93. See , e.g., United States v . Ballard , 423 F.2d 127 , 133 ( 5th Cir . 1970 ) (“[Flight is] admissible as evidence of consciousness of guilt, and thus of guilt itself.”) (quoting WIGMORE , supra note 85, § 276 (3d ed. 1940 ) (internal quotation marks omitted)).
94. See , e.g., Illinois v . Wardlow , 528 U.S. 119 , 126 - 40 ( 2000 ) (Stevens, J., concurring in part, dissenting in part) (explaining that considerations other than concern about the exposure of wrongdoing often inspire flight from police).
95. Giles v. California , 554 U.S. 353 , 386 - 87 ( 2008 ) (citing United States v . Falstaff Brewing Corp., 410 U.S. 526 , 570 n. 22 ( 1973 )).
96. This task is not made easier by the Court's own inconsistency about white collar standards of intent, as discussed in Part I. See, e .g., Holloway v . United States , 526 U.S. 1 ( 1999 ) (stating that no firm purpose is required); Farmer v . Brennan , 511 U.S. 825 ( 1994 ) (finding that objective blameworthiness derived from the facts suffices ).
97. See supra text accompanying notes 8-16.
98. See , e.g., NEIL VIDMAR & VALERIE P. HANS , AMERICAN JURIES : THE VERDICT 346 ( 2007 ) (affirming the “basic soundness of the American jury”).
99. John L. Diamond , Reviving Lenity and Honest Belief at the Boundaries of Criminal Law , 44 U. MICH. J.L . REFORM 1 , 29 ( 2010 ) ; Julie R. O'Sullivan , The Federal Criminal “ Code” Is a Disgrace: Obstruction Statutes as Case Study, 96 J. CRIM . L. & CRIMINOLOGY 643 , 679 ( 2006 ).
100. United States v. Stevens , 771 F. Supp . 2d 556 (D. Md . 2011 ).
101. Indictment , United States v. Wolff , 08 CR 417 ( 2009 ), available at http://www.justice.gov/ usao/iln/pr/chicago/2010/pr0901_01a. pdf; see also United States v . Hunt , 526 F.3d 730 ( 11th Cir . 2008 ) (involving a police officer's falsified “use of force” report).
102. United States v. Black , 625 F.3d 386 ( 7th Cir . 2010 ) ; cf . STEPHEN KING , THE COLORADO KID 46-47 ( 2005 ) (showing how stories tend to include an element of “musta-been,” which is an obvious solution to an unknown piece of the puzzle that occurs to a reader who then “tell[s] himself a story”).
103. See Black, 625 F.3d at 389 -90.
104. Aldridge v. A.T. Cross Corp., 284 F.3d 72 , 83 ( 1st Cir . 2002 ) ; see also United States v . Brown , 459 F.3d 509 ( 5th Cir . 2006 ).
105. Alex Stein , Corrupt Intentions: Bribery, Unlawful Gratuity , and Honest-Services Fraud , 75 LAW & CONTEMP . PROBS., no. 2 , 2012 at 61 , 67 .
106. FLETCHER, supra note 77, at 115-16.
107. Bonds 's trainer, Greg Anderson, refused to testify about what he told Bonds when injecting him. In contrast, consider the facts of Roger Clemens' case, in which the mental state with which he made false statements to Congress about his use of performance-enhancing drugs is arguably less opaque. Clemens's trainer, Brian McNamee, could offer more direct evidence of “awareness” in the form of testimony asserting that Clemens was told he was getting something more potent than B12 shots. See Michael S. Schmidt, Clemens's Ex-Trainer to Meet with Prosecutors , N.Y. TIMES , Jan. 13 , 2009 , at B16.
108. See , e.g., United States v . Tampas , 493 F.3d 1291 ( 11th Cir . 2007 ); United States v . Quattrone , 441 F.3d 153 ( 2d Cir . 2006 ) (holding that a reminder of the document retention policy would have been sufficient evidence for the §1503/§1512 nexus because linked to a potential cover up, but that jury was not properly instructed on it ).
109. United States v. Matthews , 505 F.3d 698 ( 7th Cir . 2007 ).
110. Chris William Sanchirico, Detection Avoidance, 81 N.Y.U. L. REV. 1331 , 1350 ( 2006 ).
111. See Steven A. Sloman , The Empirical Case for Two Systems of Reasoning, 119 PSYCHOL. BULL. 3 , 15 ( 1996 ) (explaining that the associative system of reasoning often intrudes on the rule-based one ).
112. United States v. Black , 625 F.3d 386 , 391 - 94 ( 7th Cir . 2010 ).
113. United States v. Black , 530 F.3d 596 , 604 ( 7th Cir . 2008 ), vacated on other grounds , 130 S. Ct . 2963 ( 2010 ) ; United States v . Jewell , 532 F.2d 607 , 700 - 01 ( 9th Cir . 1976 ).
114. Global-Tech Appliances , Inc. v. SEB S.A., 131 S. Ct . 2060 , 2070 - 71 ( 2011 ) (holding that a willful blindness instruction is appropriate only if the government shows “deliberate action” on part of a defendant to avoid learning of the relevant facts); United States v . Skilling , 554 F.3d 529 , 548 - 49 ( 5th Cir . 2009 ), vacated on other grounds , 130 S. Ct . 2896 ( 2010 ); Black, 530 F.3d at 604; United States v. Giovannetti , 919 F.2d 1223 , 1228 ( 7th Cir . 1990 ).
125. Cf . David Mills & Robert Weisberg , Corrupting the Harm Requirement in White Collar Crime , 60 STAN. L. REV. 1371 , 1385 ( 2008 ) (arguing that the concept of a “corruption” element has inhibited rational development of the law of obstruction of justice).
126. A.P. SIMESTER & ANDREAS VON HIRSCH, CRIMES , HARMS , AND WRONGS: ON THE PRINCIPLES OF CRIMINALISATION 199 ( 2011 ) (“Criminal convictions are not like birthday presents . . . [p] eople need reasonable opportunities to avoid them .”).
127. Cf . Bryan v. United States , 524 U.S. 184 , 203 (Scalia, J., dissenting) (querying, with regard to application of statutory “willfulness,” whether there is any “principled way to determine what law the defendant must be conscious of violating”).
128. Fowler v. United States , 131 S. Ct . 2045 ( 2011 ).
129. 18 U.S.C. § 1512(a)(1)(C) ( 2006 ).
130. Fowler , 131 S. Ct . at 2048 .
131. A related problem arises in cases where conviction requires a “nexus” between obstructive conduct and a pending investigation, or the plus factor that documents were withheld “corruptly.” In a few cases, the “corruptly” element has been interpreted to demand proof that a defendant had actual knowledge of an investigation, but it is often meaningless. See United States v . Ring , 628 F. Supp . 2d 195 , 220 (D.D .C. 2009 ) (holding that the “possible existence of a federal crime” and a defendant's “intention to thwart an inquiry into that crime” suffice); United States v . Applewhaite , 195 F.3d 679 , 687 ( 3d Cir . 1999 ) (“All that [the statute] requires is that the government establish that the defendants had the intent to influence an investigation that happened to be federal .”). Some scholars have described this element as nothing but a “redundant moral gesture” or a “rhetorical flourish . ” Mills & Weisberg, supra note 125 , at 1385. But see United States v . Stanfield , 101 F.3d 909 , 918 ( 3d Cir . 1996 ) (requiring additional evidence of federal element).
132. Fowler , 131 S. Ct . at 2048 .
133. Cf . United States v. Screws , 325 U.S. 91 , 104 - 07 ( 1945 ) (concluding, in a case involving criminal prosecution for a civil rights violation, that the statute should be construed to require a “willful” violation and that the jury should have received instructions that the defendants' generally bad purpose would not rise to that level).
134. United States v . Jackson , 405 F. Supp . 938 , 946 (E.D.N .Y. 1975 ) ; see also CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY 173 ( 1983 ) (“Whatever law is after, it is not the whole story .”).
135. LARRY LAUDAN , TRUTH, ERROR, AND CRIMINAL LAW: AN ESSAY IN LEGAL EPISTEMOLOGY 12 ( 2006 ) ; see also United States v . Havens , 446 U.S. 620 , 626 ( 1980 ) (stressing “the importance of arriving at the truth in criminal trials”); Simon, supra note 67, at 147 (arguing for a “reassertion of the value of factual accuracy”).
136. See Ronald J. Allen , Factual Ambiguity and a Theory of Evidence , 88 NW. U. L. REV. 604 , 609 ( 1994 ). But see Dan Simon, More Problems with Criminal Trials: The Limited Effectiveness of Legal Mechanisms, 75 LAW & CONTEMP . PROBS., no. 2 , 2012 at 165 , 193 (“ If, as the research suggests, the fact finder's perception of the defendant's guilt does not correspond closely to the actual guilt, the standard can do little to differentiate guilty from innocent defendants .”).
137. United States v. Goyal , 629 F.3d 912 , 919 ( 9th Cir . 2010 ) (finding insufficient evidence to support an inference of willful and knowing deception).