Will Courts Embrace DOJ’s New Definition of Willfulness for False Statement Prosecutions

In sum, the Justice Department’s new definition of “willfully” in the context of prosecutions for false statements under 18 U.S.C. §§ 1001 and 1035 will create new opportunities for criminal targets and defendants to argue to prosecutors and courts that they did not have the requisite intent to “knowingly and willfully” make false statements in violation of those criminal provisions. Nevertheless, it remains to be seen whether the application of the higher burden of proof on the element of intent will result in fewer prosecutions and convictions under these statutes.

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