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33.2 Possession Of Recently Stolen Property: Instruction Should Be Omitted Or Limited Because Defendant Has No Obligation To Testify Or Explain

    33.2.1 Recent Possession Of Stolen Property: Defendant Has No Burden Or Obligation To Furnish Explanation
    33.2.2 Possession Of Recently Stolen Property: Defendant’s Testimony Not Necessary To Explain
    33.2.3 Possession Of Recently Stolen Property: Defense Theory That Instruction Violates 5th Amendment Privilege     Against Self Incrimination
    33.2.4 Recent Possession Of Stolen Property: Improper When Only Source Of Explanation Would Be The Defendant
    33.2.5 Possession Of Recently Stolen Property: Deletion Of The Term “Unexplained” To Avoid Comment On     Defendant's Failure To Testify

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RATIONALE: Unless worded carefully, an instruction on recent possession of stolen property may improperly imply that the defendant is obligated to explain his or her possession.

POINTS AND AUTHORITIES: To pass constitutional muster a presumption must be permissive rather than mandatory. (See Francis v. Franklin (1985) 471 US 307, 313 [105 SCt 1965; 85 LEd2 34].) Accordingly, even if the defendant has not explained his or her possession of recently stolen property, the failure to do so does not mandate a finding of guilt since the defendant has no obligation to take the stand and testify or explain. (Bird v. State (GA 1945) 35 SE2d 483, 485 [upon proof alone of recent possession of stolen goods, the law does not put the burden upon the possessor of stolen goods of proving that he was not guilty of receiving the goods knowingly, as is contended by the State].)

    Accordingly, any instruction on possession of recently stolen property should explain that the defendant has no burden or obligation to produce evidence or take the stand to explain his or her possession of the property. (See State v. Peterman (ID 1979) 596 P2d 442, 444 [giving such additional instructions would have been preferable procedure]; Crawford v. State (IN 1990) 550 NE2d 759, 761 [the instruction ... cautioned that a conviction cannot be based on mere possession of stolen goods, standing alone; that no presumption of guilt arises merely by reason of such exclusive possession; that the defendant has no burden to account for or explain his possession of goods; and that the burden of proving guilt beyond a reasonable doubt rests entirely upon the State].)

    See also FORECITE National™ 33.3.6 [Possession Of Recently Stolen Property: Great Caution Required].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, FORECITE National™ 305.9.3 [Inference From Possession Of Property].

See also generally, FORECITE National™ 305.16.7 [Possession Of Stolen Property].

See generally, FORECITE National™ 33.1.3 [Possession Of Recently Stolen Property: Federal Circuit Model Instructions And Notes].

    In considering whether possession of recently stolen property has been satisfactorily explained, you are reminded that in the exercise of [his] [her] constitutional rights the accused need not testify or otherwise furnish an explanation.

[See Barnes v. U.S. (1973) 412 US 837, 840 [93 SCt 2357; 37 LEd2d 380]; see also Busch v. State (TE 1976) 541 SW2d 391, 398; NEW JERSEY MODEL JURY CHARGES - CRIMINAL Chap. 20 [Supplemental Charge on Theft] 5/28/80 ¶ 6 (New Jersey ICLE 4th ed. 1997); TENNESSEE PATTERN INSTRUCTIONS - CRIMINAL, T.P.I.-Crim 42.20 [Inference From Possession Of Stolen Property] para 4 (West, 4th ed. 2000).]

    In considering whether possession of recently-stolen property has been satisfactorily explained, you must remember that the defendant is not required to testify, to call witnesses, or to produce evidence.

[See State v. Coleman (LA 1978) 358 So2d 289, 292 [jury must be adequately informed that the defendant need not testify to the circumstance of his possession of the misappropriated article any more than in the instance of any other circumstantial evidence pointing toward guilt]; see also Joseph & LaMonica, LOUISIANA CIVIL LAW TREATISE CRIMINAL JURY INSTRUCTIONS 5.09 [Possession Of Recently Stolen Property] para. 2 (West, 1994).]

    Possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen.

    However, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrant any inference which the law permits the jury to draw from the possession of recently stolen property.

    The term 'recently' is a relative term, and has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property, and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from unexplained possession.

    In considering whether possession of recently stolen property has been satisfactorily explained, you are reminded that in the exercise of constitutional rights the accused need not testify or otherwise furnish an explanation.

    Possession may be satisfactorily explained through other circumstances, other evidence, independent of any testimony of the accused.

[See Barnes v. U.S. (1973) 412 US 837, 840, n 3 [93 SCt 2357; 37 LEd2d 380].]

    In considering whether possession of recently stolen property has been satisfactorily explained, you are reminded that, in the exercise of [his] [her] constitutional rights, the defendant need not testify in his own behalf or otherwise furnish an explanation.

    Remember that the burden of proof is on the government to prove every element of the charge beyond a reasonable doubt.

    Possession may be satisfactorily explained by looking to other circumstances or evidence, independent of any testimony of the accused.

[See Barnes v. U.S. (1973) 412 US 837, 840 [93 SCt 2357; 37 LEd2d 380]; see also Sand, et al., Modern Federal Jury Instructions 6.02 [Recently Stolen Property] (Lexis, 1995).]

SAMPLE INSTRUCTION # 5:

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RATIONALE: The jury may have a natural tendency to look only to the testimony (or lack thereof) for an explanation of the defendant's possession of the stolen property. Therefore, special instruction may be appropriate to assure that the jury understands that it can look to other evidence for an explanation.

POINTS AND AUTHORITIES: Barnes v. U.S. (1973) 412 US 837, 846 [93 SCt 2357; 37 LEd2d 380]; see also Pendergrast v. U.S. (DC Cir. 1969) 416 F2d 776, 779.

    See also FORECITE National™ 33.2.1 [Recent Possession Of Stolen Property: Defendant Has No Burden Or Obligation To Furnish Explanation].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2].

See generally, FORECITE National™ 305.9.3 [Inference From Possession Of Property].

See also generally, FORECITE National™ 305.16.7 [Possession Of Stolen Property].

See generally, FORECITE National™ 33.1.3 [Possession Of Recently Stolen Property: Federal Circuit Model Instructions And Notes].

    In considering whether possession of recently stolen property has been satisfactorily explained, you are reminded that in the exercise of constitutional rights the accused need not take the witness stand and testify.

    Possession may be satisfactorily explained through other circumstances, other evidence, independent of any testimony of the accused.

[Barnes v. U.S. (1973) 412 US 837, 840 n 3 [93 SCt 2357; 37 LEd2d 380.]

    Possession may be explained satisfactorily by facts and circumstances independent of any testimony by the defendant. In considering whether possession has been explained satisfactorily, you are reminded that a defendant has an absolute right not to testify and need not call any witnesses or produce any evidence.

[7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.14 [Possession Of Stolen Property-Inference] ¶ 3 (1999).]

    In considering whether the defendant’s possession of the recently stolen property has been satisfactorily explained, you must bear in mind that the defendant is not required to [take the witness stand or] furnish an explanation. [His] [Her] possession may be satisfactorily explained in other circumstances shown by the evidence independently of any testimony of the defendant. And even though the defendant’s possession of recently stolen property is unexplained or is not satisfactorily explained, you cannot draw the inference under consideration if, on the evidence as a whole, you have a reasonable doubt as to his guilt.

[Adapted from instruction approved in Pendergrast v. U.S. (DC Cir. 1969) 416 F2d 776, 790.]

See also generally, FORECITE National™ 305.16.7 [Possession Of Stolen Property]

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PRACTICE NOTE: An instruction permitting the jury to infer guilt from the defendant's recent possession of stolen property is necessarily predicated on the defendant's failure to testify and explain such possession. Hence, it may be argued that any such instruction violates the 5th Amendment of the federal constitution. (See generally FORECITE National™ 300.23 [Privilege Against Self Incrimination (5th Amendment); see also FORECITE National™ 33.2.1 [Recent Possession Of Stolen Property: Defendant Has No Burden Or Obligation To Furnish Explanation]; but see Wharton's Criminal Procedure (West, 13th ed. 1989) § 353, pp. 171-72 [recent possession instruction is not comment on defendant’s failure to testify and does not violate defendant’s privilege against self incrimination].)

See generally, FORECITE National™ 305.9.3 [Inference From Possession Of Property].

See also generally, FORECITE National™ 305.16.7 [Possession Of Stolen Property].

See generally, FORECITE National™ 33.1.3 [Possession Of Recently Stolen Property: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: State v. Burch (NJ 1981) 432 A2d 108, 110 concluded that "when it is clear from the record that defendant is the only source to supply [an] explanation, the instruction [as to inferring guilt from possession of stolen property] is prejudicial and should not be given." However, the court also noted that in stolen property cases some evidence, other than the defendant’s testimony, "such as a sales slip or sales clerk," is usually available to the defense "to account for innocent possession." (Id. at 343.) Thus, the court concluded that the instruction concerning the inference was proper even though "there [was] an absence of a specific showing in the record as to the availability of an evidence source other than the defendant’s own testimony...." (Id. at 343-44; see also State v. DiRienzo (NJ 1969) 251 A2d 99, 110.)

    See also FORECITE National™ 33.2.1 [Recent Possession Of Stolen Property: Defendant Has No Burden Or Obligation To Furnish Explanation].

See generally, FORECITE National™ 305.9.3 [Inference From Possession Of Property].

See also generally, FORECITE National™ 305.16.7 [Possession Of Stolen Property].

See generally, FORECITE National™ 33.1.3 [Possession Of Recently Stolen Property: Federal Circuit Model Instructions And Notes].

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    33.2.5    Possession Of Recently Stolen Property: Deletion Of The Term "Unexplained" To Avoid Comment On Defendant's Failure To Testify

PRACTICE NOTE: The defense should have the right to have the term "unexplained" deleted in cases where there is little or no evidence of an explanation. The prosecution has no legitimate basis for objecting to this deletion since the existence of an explanation is in effect a defensive matter which could only benefit the defendant and, hence, should be waivable at the defendant's option. (See FORECITE National™ 4.3.2.3 [Cautionary/Limiting Instruction Should Not Be Given Over Defendant's Objection: Defendant May Waive Benefits].)

    See also FORECITE National™ 33.2.1 [Recent Possession Of Stolen Property: Defendant Has No Burden Or Obligation To Furnish Explanation].

    See also FORECITE National™ 33.2.4 [Recent Possession Of Stolen Property: Improper When Only Source Of Explanation Would Be The Defendant].

See generally, FORECITE National™ 305.9.3 [Inference From Possession Of Property].

See also generally, FORECITE National™ 305.16.7 [Possession Of Stolen Property].

See generally, FORECITE National™ 33.1.3 [Possession Of Recently Stolen Property: Federal Circuit Model Instructions And Notes].