The Bedeviling Question Of Willfulness In The Criminal Context

Courts have long struggled with interpreting (and thus instructing a jury on) the statutory element of willfulness. This frequently manifests in the challenge of expressing what level of knowledge the defendant must possess about the law he is accused of violating. Reflective of this challenge, courts have characterized the element of willfulness as "bedeviling," turning as it does on a "chameleon" word whose construction is often dependent on its context.¹ Embracing the chameleon concept, courts have created varying standards that become increasingly difficult for the government to prove as the statutory proscription in question becomes more complex and less intuitive. The following three standards (in order of increasing proof) have emerged as leading candidates: