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:
Baseline level: Simple intentionality (where ignorance of the law is no excuse). Intermediate level (Bryan standard): The defendant intended to violate some law (general intent) but need not have known of the charged law's specific commands. Heightened level (Ratzlaf / Cheek standard): The defendant knew of the legal duty but voluntarily and intentionally violated it.2 The purpose of applying a heightened standard of willfulness is to avoid ensnaring individuals engaged in apparently innocent activity although defendants often (and understandably) take a home-run swing and urge courts...
