A Hybrid Approach to the Use of Deliberate Ignorance in Conspiracy Cases

When hunted, the ostrich is said to run a certain distance and then thrust its head into the sand, thinking, because it cannot see, that it cannot be seen by the hunters. Legal parlance therefore refers to the “ostrich instruction,” used when a defendant acts with the awareness of a high probability of the existence of an incriminating fact, but remains deliberately ignorant as to whether the fact actually exists, hoping his ignorance will maintain his innocence. The defendant is like the ostrich – he thinks that if he does not actually see the facts, even though he knows they are there, he will maintain his innocence. The ostrich instruction allows the jury to equate deliberate ignorance with knowledge of a particular fact for the purpose of establishing the requisite mens rea for a crime, particularly in the context of conspiracy cases. Mens Rea is defined as “[a]n element of a criminal responsibility: a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty Knowledge and wilfulness.” A person’s criminal culpability requires a showing that he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.