We are all familiar with the doctrine of “consciousness of guilt” wherein the prosecutor may introduce evidence such as flight or cover-up that permits an inference that the defendant believed he was guilty. But, there is also a less well-known and less widely accepted doctrine of “consciousness of innocence.”

I wanted to report on a pretrial victory by Daniel M. Gitner of Lankler Siffert & Wohl LLP related to “consciousness of innocence” evidence. Mr. Gitner represents Rengan Rajaratnam, the younger brother of Raj Rajaratnam, who was indicted on charges of insider trading and is awaiting trial. US. v. Rengan Rajaratnam, No. 1-13-cr-00211 (S.D.N.Y June 6, 2014). In a pretrial motion, U.S. District Judge Naomi Reice Buchwald ruled that she would allow Rajaratnam to introduce “consciousness of innocence” evidence during his upcoming trial. The judge will allow jurors to hear about Rengan’s decision to fly from Brazil to the U.S. shortly after being indicted in March 2013. The defense argues that this evidence shows Rengan knew he was innocent.

Mr. Gitner kindly forwarded me his brief and I’ve reposted the relevant section below:

Rengan’s Extraordinary and Immediate Decision to Return Voluntarily to the United States is Admissible Proof of His Consciousness of Innocence

Given the facts of this case, Rengan’s immediate decision to return to the United States should be admitted as evidence of Rengan’s consciousness of innocence.

i. Consciousness of innocence evidence is admissible.

In United States v. Biaggi, 909 F.2d 662 (2d Cir. 1990)—the landmark Second Circuit case on “consciousness of innocence” ignored by the government—the defendant sought to prove that the government had offered him immunity in return for information about wrongdoingby others, and that the defendant “denied knowledge of any such wrongdoing, thereby ‘rejecting’immunity.” Biaggi, 909 F.2d at 690. The district court excluded this evidence, primarily on relevance grounds. The Second Circuit reversed, holding that “the probative force of a rejected immunity offer is clearly strong enough to render it relevant.” Id. at 691. Specifically, while “there may be reasons for rejecting the offer that are consistent with guilty knowledge . . . a jury is entitled to believe that most people would jump at the chance to obtain an assurance of immunity from prosecution and to infer from rejection of the offer that the accused lacks knowledge of the wrongdoing. That the jury might not draw the inference urged by the defendant does not strip the evidence of probative force.” Id. at 690-91. The Court cited no prejudice to the government by admitting such evidence.

In support of its holding, the Biaggi Court quoted extensively from Dean Wigmore:

Let the accused’s whole conduct come in; and whether it tells for consciousness of guilt or for consciousness of innocence, let us take it for what it is worth . . . . Let us not deprive an innocent person, falsely accused, of the inference which common sense draws from a consciousness of innocence and its natural manifestations.

Id. (citing 2 Wigmore on Evidence § 293, at 232 (J. Chadbourn rev. ed. 1979)).

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The Antitrust Division has a Rolodex full of defendants who are fugitives from Sherman Act charges. Should any of these individuals voluntarily submit to U.S. jurisdiction, the “consciousness of innocence” doctrine may be relevant. Of course, the circumstances around a voluntary surrender may vary. For example, if a defendant “voluntarily” surrenders because things don’t seem to be going his way in extradition proceedings, that will not likely support an inference of an innocent state of mind.  Another realistic circumstance may be when a citizen of country A who is an antitrust fugitive is detained in jail in country B while uncertain extradition proceedings begin. That defendant may elect to voluntarily agree to submit to U.S. jurisdiction to get on with things, but this also would raise no “consciousness of innocence.”  Mr. Rajaratnam immediately came to the U.S. upon his indictment—something no antitrust defendant has done. Consciousness of innocence evidence may be limited to this unusual extradition circumstance, but it is a doctrine worth knowing about.

For more on the trial of Rengan Rajaratnam see this June 16, 2014 article: Prosecutors Face New Hurdles in Insider Trading Trial, http://online.wsj.com/articles/prosecutors-face-new-hurdles-in-insider-trading-trial-1402878208?mod=WSJ_hp_LEFTWhatsNewsCollection.