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Can I Be Found Guilty of a Crime I Had No Knowledge Of?
The case for holding "willful blindness" unconstitutional, and how a judge-made shortcut is convicting healthcare practitioners who never saw the fraud.
Federal health care fraud is a specific-intent crime. To convict, the government must prove the defendant knowingly and willfully executed a scheme to defraud. Congress did not criminalize working near fraud or failing to detect it. It criminalized intending it.
This article examines the judge-made doctrine that fills the gap when that intent cannot be proven: willful blindness, also called deliberate ignorance, conscious avoidance or the "ostrich instruction." It lets a jury treat a defendant as if she knew something she did not, if it concludes she should have suspected it and failed to look.
The doctrine began in a 1976 drug-courier case, United States v. Jewell. The article traces how it became a default theory against nurses and doctors, and argues that as applied it violates due process: it dilutes the government's burden on the intent element, punishes a mental state Congress never criminalized, and is logically at odds with the intent to defraud it is used to prove.
Key points
- Health care fraud requires proof of actual intent to defraud.
- Willful blindness substitutes "should have suspected" for "knew."
- The doctrine was built for drug couriers and is now routinely used against clinicians.
How this applies to Elizabeth Hernandez's case
In Elizabeth Hernandez's trial, the government raised deliberate avoidance for the first time in its short rebuttal, after her lawyer's time had run out, and the jury was then instructed on it. Her lawyer had listed deliberate ignorance among the topics she never got to address. See the minute-by-minute record.
Keep reading
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The First Verdict Was a Press Release
How a Justice Department announcement convicted Elizabeth Hernandez in public before a jury ever heard the evidence.