Essentially, the instruction allowed the jury to return a guilty verdict where the company should have known of the violation based on the circumstances of the situation. This is referred to as constructive knowledge. The instruction ran contrary to established criminal law principles as knowledge in a criminal statute means actual knowledge. Therefore, for criminal prosecution, a willful violation exists only where actual knowledge of the violation exists. Standard of Proof .
Actual knowledge is proven in one of two ways.
The first, and most obvious, is through a showing that the employer realized it operated in violation of a specific OSHA standard. The smoking gun memorandum, for example, stating the company s policy of ignoring the procedures for lockout-tagout, however, is seldom found. This is the so-called ostrich instruction, which informs juries that actual knowledge and the intentional avoidance of knowledge are the same thing. An employer with a suspicion that a specific violation exists may not escape liability by avoiding further inquiry into the potential violation. Forbearance itself can be used to infer actual knowledge.