Criminal Intent

If I do not know the law, how can the government prove I acted with intent?

Unfortunately, knowing the law is not a prerequisite to proving that an individual intended to act unlawfully. Often, the government can rely on a defendant's "willful blindness" or intent to perform a specific act, which just so happens to be illegal. As litigators in white collar crime, we all live in fear of the "you don't have to know the law to show intent" jury instruction. And let's not forget about the "he wasn't paying attention" instruction, the "willful blindness" instruction, and the "knowledge includes deliberate avoidance of knowledge" instruction. In one case, Bryan v. United States, for example, the trial judge instructed the jury that "a person acts willfully if he acts intentionally and purposely and with the intent to do something the law forbids, that is, with the bad purpose to disobey or to disregard the law. Now, the person need not be aware of the specific law or rule his conduct may be violating. But he must act with the intent to do something the law forbids."

How important is intentionality in white collar criminal prosecutions?

It is the general principle of criminal law that a crime is not committed unless the person committing it has the mens rea viz. guilty mind. The maxim "actus non facit recum, nisi mens sit rea" means that the intent and act must both concur to constitute the crime. Crime is a general term. Offense is that crime which is made punishable by law. For commission of every offense, the requisite thing is actus reas along with mens rea unless the statute expressly excludes it.

Intentionality plays a crucial role in white collar criminal prosecutions. In fact, it is a key element of most white collar offenses. Recent white collar criminal prosecution history is replete with examples convictions that were based heavily on the jury finding that a white collar defendant possessed the requisite intent to commit the charged offense.

Why are white collar crimes commonly referred to as crimes of intent?

White collar crimes are often entitled crimes of intent because the government tends to focus its case on proving that the defendant acknowledged their involvement in the unlawful transactions. This is why we must "element-ize" intent and distinguish our client from those elements at every opportunity.

Does skill factor in when determining intent?

Researchers have found that skill is an essential component of people's concepts of intentional action. That is, if a discrete behavior is performed and fulfills a desire, the agent must have brought about that behavior with skill (rather than luck) for the action to count as intentional. In other words, where a defendant has a history of performing particular transactions or other conduct, the jury will often infer that he or she acted with intent when committing the charged offense. Basically, skill is often conflated with intent – possessing the ability to do something leads juries to conclude that the individual intended to perform that act.

What is attribution theory?

Social psychologists have developed what they call "attribution theory," which focuses on the various causes that people assign to behavior. In study after study, these psychologists tell us that people explain intentional actions differently from how they explain other events. We need to know what these psychologists have found about how our juries attribute intent, and we need to use it in voir dire, opening, cross, direct, and closing arguments. In order to prevent juries from simply assuming an action occurred intentionally, a defense attorney must take steps to address alternate possibilities (such as innocent mistake or lack of knowledge). By recognizing the attribution phenomenon, the defense can try to effectively convince a jury that the defendant did not act intentionally on a given occasion.

What are the elements that must be proven to show a defendant acted with intent?

The element of awareness must be seen as operative in the A + B +C + D scheme. Mr. Defendant has to desire a specific outcome (A) that he believes a particular discrete behavior will accomplish (B). Mr. Defendant must intend to do that discrete behavior (C) have the requisite skill to do that discrete behavior (D) and be aware of his attempt to accomplish the discrete behavior —while attempting it (E). By breaking the intent element down, the defense team can challenge all four elements, disproving one destroys any finding of intent.