On the Mental State of Consciousness of Wrongdoing

I INTRODUCTION In the adjudication of white collar crime, a conceptually challenging mental state is on the rise. The idea is that an actor's "consciousness of wrongdoing" (or awareness of guilt, or like formulations) is a determinative factor in imposing criminal liability. This facially broad standard turns out to hold promise for adjudicators and enforcers compelled to cope with a central problem of white collar offenses: how to identify specific behaviors meriting criminal punishment from within realms of social and economic activity that, viewed as a whole, are unobjectionable and often beneficial. This mental state formulation cannot hope to deliver on that promise, however, without managing a central problem of evidence and adjudication: how to "find" a particular form of mental state within a system that is full of risks of error arising from the psychological and narrative processes that powerfully influence criminal inquiries and trials. There are reasons to think the concept of consciousness of wrongdoing is particularly fraught with error risks, but also grounds for concluding that its benefits as a liability-sorting device might prevail over its riskiness in the hands of adjudicators--if those risks are properly understood and managed. The discussion here has the twin aims of explaining the concept and function of consciousness of wrongdoing as a mental state in white collar crime, and exploring how that concept might operate, to beneficial or harmful ends, in the American system of adjudication. First, an explanation of how the idea of consciousness of wrongdoing fits within the basic framework of substantive criminal law is warranted. The problem of mistake of law as a defense to criminal liability is generally treated as two-sided. On one side is the maxim that "ignorance of the law is no excuse." 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 conduct. (5) 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 rubric: Table: Mental State as to Normative Status Inculpatory Exculpatory Actor does not (1) Ignorance of the (2) Limited mistake- believe normatively law is not a defense. of-law defenses wrongful, or has no recognized. belief about normative status Actor believes (3) "Consciousness of (4) Mistaken belief normatively wrongful wrongdoing" or about illegality or "guilty knowledge" is wrongfulness does not a basis for imposing support liability. …