Conscious Avoidance: An Over-Used Doctrine

, New York Law Journal


In their White-Collar Crime column, Morvillo Abramowitz Grand Iason & Anello partners Robert J. Anello and Richard F. Albert write: It has become de rigueur for the government to request, and for trial courts to deliver, a conscious avoidance jury instruction in virtually all criminal prosecutions where the element of knowledge is contested. Where no evidence of manifest conduct by the defendant to avoid knowledge is introduced, however, such instruction serves no useful purpose except to threaten to cause confusion and to lessen the government's burden to demonstrate the culpable mental state required by statute.

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