FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 5 - CHAPTER 46

RATIONALE: Even if defined only in terms of intent, willfulness requires knowledge of the facts which make the act criminal. Therefore, even though the jury is often instructed that the defendant need not know the act was criminal, the instructions should explain the requirement of knowledge of the facts which bring the act within the statute.

POINTS AND AUTHORITIES: Some jurisdictions define willfully as "a purpose or willingness to commit the act, or make the omission referred to." (E.g., California Penal Code § 7(1).) (Compare FORECITE National™ 46.2 [Willfully Defined: Intent To Violate The Law].) Knowledge should be an element of such "willful" action since a person must know what he or she is doing and intend to do the act. (See People v. Simon (CA 1995) 9 C4th 493, 507-23 [37 CR2d 278]; In re Jerry R. (CA 1994) 29 CA4th 1432, 1438 [35 CR2d 155]; In re Trombley (CA 1948) 31 C2d 801, 807 [193 P2d 734].) This includes knowledge of the nature and/or consequences of the act which make it criminal. (See e.g., People v. Osband (CA 1996) 13 C4th 622, 681 [55 CR2d 26] ["to intend means to have in mind as a purpose or goal... [and should be defined] in terms of purpose or knowledge." [Internal citations and punctuation omitted.]]; People v. Honig (CA 1996) 48 CA4th 289, 334, [55 CR2d 555] [knowledge is "concomitant of willfulness"]; People v. Colantuono (CA 1994) 7 C4th 206, 219 [26 CR2d 908] [willful commission of a violent act requires knowledge that an unlawful touching is substantially certain to result].)

    This requirement has also been expressed in terms of knowledge that the criminal result is "practically certain" to occur. (See U.S. v. M.W. (10th Cir. 1989) 890 F2d 239, 241; see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 23.05 [Lesser Included Offense - Elements And Form Of Verdict] (West, 5th ed. 2000); MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 2-101(33) [Theft-Obtaining Control By Deception] sent. 3 (State Bar of Montana, 1990); Model Penal Code §2-02 (1962) ["A person acts knowingly...when he is aware there exists the high probability that his conduct will cause a specific result..."].)

    Moreover, the term willfully has been equated with general criminal intent. (See People v. Lee (CA 1994) 28 CA4th 659, 664 [33 CR2d 782]; People v. Stark (CA 1994) 26 CA4th 1179, 1182-83 [31 CR2d 887].) Therefore, because general criminal intent requires knowledge of the nature and consequences of the act which bring it within the terms of the statute (People v. Lopez (CA 1986) 188 CA3d 592, 598 [233 CR 207]) the term "willfully," when used to describe the general criminal intent mens rea of an offense, should include such an element. (U.S. v. Nguyen (9th Cir. 1995) 73 F3d 887, 890 ["... a person is not criminally responsible unless 'an evil-meaning mind' accompanies 'an evil-doing hand' [citation.]"]; see also 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.5 [defendant must have knowingly intended to do "what the statute prohibits"] p. 88 (2000).)

    For example, the crime of resisting arrest has been defined as a general criminal intent statute which proscribes the act of "willfully" resisting arrest, such as, running away from an arresting officer. However, merely showing that the defendant intentionally committed such an act does not establish general criminal intent. It must also be shown that the defendant had knowledge of the particular facts proscribed by the statute: e.g., that the arresting person was a police officer. "Merely running away from someone is not resisting arrest. Running from a plain clothes officer who does not identify that he or she is an officer could not, for instance, be a crime." (Lopez, 188 CA3d at 598; see also People v. Simon (CA 1995) 9 C4th 493, 519-22 [37 CR2d 278] ["willfully" selling a security by means of misrepresentation or omission of material fact requires knowledge of the "falsity or misleading nature of a statement or of the materiality of an omission ...."]; People v. Beaugez (CA 1965) 232 CA2d 650, 657-58 [43 CR 28] [willful infliction of corporal punishment on a child (Penal Code § 273d) requires knowledge of the consequences of the act committed].)

    The comment to Instruction No. 5.5 of the 9th Circuit Model Jury Instructions - Criminal (2000 Revision) provides an analysis of the knowledge required to establish willfulness. The Ninth Circuit Committee concluded that when willfulness is an element of the charge, the willfulness instruction should track the relevant statutory definition of the offense and explain "in language tailored to the facts, that the offense must have been committed knowingly, intentionally and for the purpose of accomplishing what the statute prohibits." (Id. at p. 88.) In some situations federal statutes are further construed to require actual knowledge of the law. Under Federal law, the difference between knowingly and willfully is the following: to act knowingly is to act with knowledge of what one is doing, that is, to act with intent to do the act that is proscribed by the law. To act willfully requires that the defendant act with knowledge of what the law proscribes and to act in violation of the law, knowing that he or she is doing so. In short, willfully requires knowledge of what the law is; to act knowingly does not require knowledge of the law. (See U.S. v. Obiechie (7th Cir. 1994) 38 F3d 309, 315-16; see also 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 4.09 [Definition Of Willfully] Committee Comment (1999).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.6; 4.1].

See generally FORECITE National™ 46.3 [Willfulness: Federal Circuit Model Instructions And Notes].

    However, it must be proven beyond a reasonable doubt that the defendant committed the act with actual knowledge of the existence of the facts [, including the reasonable, natural and probable consequences of the act committed,] which bring the act within the provisions of the statute under which the defendant is charged.

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 5 - CHAPTER 46

PRACTICE NOTE: Whether or not the term "willfully" requires an intent to violate the law depends on how the particular statute is interpreted. For example, in Ratzlaf v. U.S. (1994) 510 US 135, 136-37 [114 SCt 655; 126 LEd2d 615] the U.S. Supreme Court defined "willfully" in the context of the statute at issue in that case to mean an attempt to violate the law. (See also U.S. v. Hove (9th Cir. 1995) 52 F3d 233, 235 [jury must be instructed that defendant "acted with knowledge that his conduct was unlawful"]; People v. Hagen (CA 1998) 19 C4th 652, 666 [80 CR2d 24] [willfulness element of filing false/fraudulent tax return, requires the prosecution to prove an "intentional violation of a known legal duty"]; but see Bryan v. U.S. (1998) 524 US 184 [118 SCt 1939; 141 LEd2d 197, 207] [knowledge of legal duty required only when statute presents "the danger of ensnaring individuals in apparently innocent conduct"]; State v. Azneer (IA 1995) 526 NW2d 298 [willfully should be construed as including a knowing violation of law if the offense is "not inherently wrong" but only as intentionally acting if the offense is "inherently wrong"].)

    See also FORECITE National™ 98.3.2 [Tax Evasion: Miscellaneous Issues].

    See also FORECITE National™ 98.3.2.1 [Willful Failure To File Tax Return].

See generally FORECITE National™ 46.3 [Willfulness: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 5 - CHAPTER 46

See 1st Circuit Pattern Jury Instructions - Criminal 2.14.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.38.

See also 6th Circuit Pattern Jury Instructions - Criminal 2.05.

See also 7th Circuit Federal Jury Instructions - Criminal 4.09.

See also 8th Circuit Model Jury Instructions - Criminal 7.02.

See also 9th Circuit Model Jury Instructions - Criminal 5.5.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 9.1.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 9.