THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 4 - CHAPTER 33
Go to Volume 4 Table of Contents - Go to Chapter 33 Table of Contents

33.3 Inference From Possession Of Recently Stolen Property: Propriety Of Instruction

    33.3.1 Possession Of Stolen Property: Improper Comment On The Evidence
    33.3.2 Recently Stolen Property Instruction Because The Defendant Can Waive An Instruction Which "Protects The     Defendant"
    33.3.3 Possession Of Recently Stolen Property: Instruction Improper Where Theft Is Defined Without Asportation Requirement
    33.3.4 Possession Of Recently Stolen Property: Objection To Instruction Because It Is A Rule Of Evidence, Not A Rule Of Law
    33.3.5 Possession Of Recently Stolen Property: Instruction Proper Only When Identity Of Thief Is As Issue; Not Proper When Defense Is Claim Of Right
    33.3.6 Possession Of Recently Stolen Property: Great Caution Required

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 4 - CHAPTER 33

PRACTICE NOTE: It may be argued that instructing the jury regarding an inference from possession of stolen property is an improper comment on the evidence. (See NCJIC 6.1.1 [The Prosecution Should Not Be Permitted To Obtain Instructions Which Comment On The Evidence].)

    Such an argument may also focus on the jurisdiction's refusal of comparable defense theory instructions as improper comments on the evidence. (See NCJIC 6.1.2 [If The Prosecution Gets Inference Instructions The Defense Should Also].)

    See also NCJIC 33.3.4 [Possession Of Recently Stolen Property: Objection To Instruction Because It Is A Rule Of Evidence, Not A Rule Of Law].

See generally, NCJIC 305.9.3 [Inference From Possession Of Property].

See also generally, NCJIC 305.16.7 [Possession Of Stolen Property].

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

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 33

    33.3.2    Objection To Instruction On Possession Of Recently Stolen Property Because The Defendant Can Waive An Instruction Which "Protects The Defendant"

PRACTICE NOTE: People v. Holt (CA 1997) 15 C4th 619, 677 [63 CR2d 782] concluded that "where identity of a perpetrator is in dispute or sought to be proved by circumstantial evidence, the standard instruction on possession of recently stolen property (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC CJ 2.15 [Possession Of Stolen Property] (West, 6th Ed. 1996)) protects the defendant from unwarranted inferences of guilt based solely on possession of property stolen in the charged offense." (Emphasis added.) If this is the true purpose of the instruction (but see NCJIC 33.3.1 [Possession Of Stolen Property: Improper Comment On The Evidence]) then the defense should have the option of waiving this benefit and precluding it from being given. A criminal defendant may waive rights that exist for his or her own benefit. (See NCJIC 4.3.2.3 [Cautionary/Limiting Instruction Should Not Be Given Over Defendant's Objection: Defendant May Waive Benefits]; see also Cowan v. Superior Court (CA 1996) 14 C4th 367, 371 [58 CR2d 458].) "Permitting waiver.... is consistent with the solicitude shown by modern jurisprudence to the defendant's prerogative to waive the most crucial of rights." (People v. Robertson (CA 1989) 48 C3d 18, 61 [255 CR 631]; see also Cowan, supra, 14 C3d at 371].)

    Thus, when the defendant specifically objects to the instruction it should not be given.

See generally, NCJIC 305.9.3 [Inference From Possession Of Property].

See also generally, NCJIC 305.16.7 [Possession Of Stolen Property].

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

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 33

PRACTICE NOTE: In jurisdictions with modern codes where theft has been re-defined to exclude an asportation element (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.3, pp. 348-49), the possession of recently stolen property instruction is improper because it was the asportation element which the traditional instruction permitted to be inferred against the possessor by the fact of possession. 

    See also NCJIC 33.5.4 [Recent Possession Of Stolen Goods: Inapplicable To Receiving Or Theft By Receiving].

See generally, NCJIC 305.9.3 [Inference From Possession Of Property].

See also generally, NCJIC 305.16.7 [Possession Of Stolen Property].

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

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 33

PRACTICE NOTE: The circumstance of possession of goods recently stolen is a rule of evidence.  Therefore, its only application should be in determining whether as a matter of law there is sufficient evidence to submit the case to the jury. (See State v. Crawford (KS 1977) 573 P2d 982, 983 [comment to PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 59.01 [Crimes Against Property-Theft]; but see NCJIC 33.3.2 [Objection To Instruction On Possession Of Recently Stolen Property Because The Defendant Can Waive An Instruction Which "Protects The Defendant"].)

See generally, NCJIC 305.9.3 [Inference From Possession Of Property].

See also generally, NCJIC 305.16.7 [Possession Of Stolen Property].

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

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 33

PRACTICE NOTE: See State v. Ippolito (NJ 1996) 671 A2d 165, 170 [ "The inference charge is given when there is a dispute concerning the identity of the person who physically took the property," but "is inappropriate where...defendant admits that he took the property and possessed it from the time it was taken until it was recovered but he has explained his possession as claim of right"].

    See also NCJIC 252.5 [Claim Of Right].

See generally, NCJIC 305.9.3 [Inference From Possession Of Property].

See also generally, NCJIC 305.16.7 [Possession Of Stolen Property].

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

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 4 - CHAPTER 33

PRACTICE NOTE: Great caution should be exercised in giving an instruction on the unexplained possession of recently stolen property. The relevance of such evidence can vary a great deal, depending on the circumstances.  (See e.g., NCJIC 33.4.5 [Possession Of Recently Stolen Property: "Recently" Is A Relative Term].)  "It would be impossible to enumerate the variety of circumstances attending the mere possession of stolen goods, which would lessen or increase the inference of guilty possession. In directing a jury, therefore, as to the weight they should give to the possession of stolen goods or the instruments of crime as evidence of guilt, care should be taken not to place too much importance upon the mere possession, but their attention should be called to the character of the possession and the circumstances attending it." (Ingalls v. State (WI 1880) 4 NW 785, 793.) Of particular concern is the danger that the language of such an instruction may be interpreted by the jury as a "presumption calling for an explanation" which would shift the burden of proof to the defendant and relieve the prosecution of its burden to prove all elements of the crime beyond a reasonable doubt. (See WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 173 [Circumstantial Evidence-Possession Of Recently Stolen Property] comment p. 3 (University of Wisconsin Law School, 2000).)

See generally, NCJIC 305.9.3 [Inference From Possession Of Property].

See also generally, NCJIC 305.16.7 [Possession Of Stolen Property].

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