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 VOLUME 5 - CHAPTER 56
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56.3 Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession

    56.3.4 Unwitting Or Accidental Possession

    56.3.4.1 Unwitting Possession As Defense Theory
    56.3.4.2 Accidental Possession As Defense Theory
    56.3.4.3 Even If Defense Not Proven, Jury Must Consider Evidence Of Accidental Or Unwitting Possession As To The Elements Of The Charge

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 VOLUME 5 - CHAPTER 56

RATIONALE: The jury should not be permitted to impose criminal liability for a possession offense where the defendant did not know of the fact of possession or the true identity of the object possessed.

POINTS AND AUTHORITIES: In many jurisdictions knowledge is an element of a possession crime which the prosecution must prove beyond a reasonable doubt. (See e.g., FORECITE National™ 256.6.1.15 [Intoxication Or Mental Impairment: Negation Of Knowledge Element]; see also FORECITE National™ 101.7.3.1 [Possession Of Obscenity: Lack Of Knowledge As Defense Theory].) In such jurisdictions the prosecution does not meet this burden unless it proves that the defendant's possession was not mistaken or "unwitting." (See e.g., People v. Jeffers (CA 1996) 41 CA4th 917, 922 [49 CR2d 86]; see also U.S. v. Beckham (DC Cir. 1992) 968 F2d 47, 52-53 [inadvertent or accidental possession does not satisfy the statutory requirement that possession be knowing or intentional]; Oliver v. State (FL 1998) 707 So2d 771, 772 [possession crimes require "guilty knowledge"].)

    In other jurisdictions unwitting possession is an affirmative defense. For example, in Washington the affirmative defense of "unwitting" possession may be based on the defendant’s theory that he did not know the nature of the substance he possessed." (State v. Staley (WA 1994) 872 P2d 502, 505; WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 50.02 [Possession Of Controlled Substance-Elements], comment (West, 2nd ed. 1994).)

    See also FORECITE National™ Chapter 54 [Strict Liability].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 4.3].

CAVEAT: Regardless of whether it is an affirmative defense or an element, by characterizing knowledge as a "defense" rather than an element of the charge, there may be a danger that the jury will be confused regarding the prosecution’s burden to prove knowledge beyond a reasonable doubt. (See FORECITE National™ 250.5.2 [Even If Defendant's Burden As To A Defense Is Not Met, Jury Must Consider Factual Basis For The Defense As To Proof Of Elements].) Note that M.J.I. (1992) 106.05 (Sample # 2, below) includes knowledge of both possession and nature of the controlled substance as elements of the charge of possession of a control substance. This element is also included in other Mississippi controlled substance instructions. (MISSISSIPPI MODEL JURY INSTRUCTIONS - CRIMINAL, MJI-Criminal 4:6 et seq. [Sale Of Schedule I Or II Controlled Substance] (West, 2000).)

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION # 1: [Where Unwitting Possession Is An Affirmative Defense]

    A person is not guilty of possession of a controlled substance if the possession is unwitting. Possession of a controlled substance is unwitting if a person [did not know that the substance was in [his] [her] possession] [or] [did not know the nature of the substance].

    The burden is on the defendant to prove by a preponderance of the evidence that the substance was possessed unwittingly. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true.

[See State v. Staley (WA 1994) 872 P2d 502; see also WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 52.01 [Possession Of Controlled Substances-Definition] (West, 2nd ed. 1994).]

    Possession is having control over an object with knowledge of and the intent to have such control.

[See U.S. v. Beckham (DC Cir. 1992) 968 F2d 47, 52-53; see also Staples v. State (OK 1974) 528 P2d 1131, 1122; PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 53.00 [Definitions And Explanations Of Terms] p. 102 (Kansas Judicial Council, 3rd ed. 1999).]

    A person’s actual [unawareness of an object] [erroneous belief that an object was not present], no matter how unreasonable will negate the knowledge element of the charged offense.  Unless the prosecution has proved beyond a reasonable doubt that the accused was not [ignorant of the fact] [under the mistaken belief] that ___________ (state asserted ignorance or mistake), the accused may not be convicted.  

[See People v. Jeffers (CA 1996) 41 CA4th 917, 922 [49 CR2d 86]; see also Oliver v. State (FL 1998) 707 So2d 771; U.S. v. Beckham (DC Cir. 1992) 968 F2d 47, 52-53; see also MISSISSIPPI MODEL JURY INSTRUCTIONS - CRIMINAL, MJI-Criminal 2:12 [Mistake Or Ignorance In Drug Offenses] ¶ 3 (West, 2000).]

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RATIONALE: There is no criminal intent when the possession is accidental or unintentional.

POINTS AND AUTHORITIES: When possession of contraband is unintentional, the defendant should have a right to an instruction which informs the jury that accidental or unintentional possession is not a violation of the statute. (People v. Jeffers (CA 1996) 41 CA4th 917, 924 [49 CR2d 86].) Sample Instruction # 1 below is adapted from the instruction requested in Jeffers, which the appellate court held that, though "flawed in some respects ... was a reasonable attempt to articulate a valid legal principle supported by the evidence." (Jeffers, 41 CA4th at 925; see also FORECITE National™ 56.3.4.1 [Unwitting Possession As Defense Theory.)

    See generally FORECITE National™ 56.3 [Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 4.3].

Annotation, What Amounts To "Control" Under State Statute Making It Illegal For Felon To Have Possession Or Control Of Firearm Or Other Dangerous Weapon, 66 ALR4th 1240.

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION # 1:

    When an exfelon comes into possession of a firearm without knowing that [he] [she] has a firearm, and [he] [she] later learns that [he] [she] has a firearm, [he] [she] does not automatically violate the law upon acquiring knowledge of the firearm. The exfelon violates the law only if it is proved that [he] [she] intentionally retained possession of the weapon after learning of its presence and did not take reasonable steps to immediately relinquish possession of it.

SAMPLE INSTRUCTION # 2: [Where Element Of Charge Is Negated]:

    Acquiring possession of an illegal object through misfortune or accident and without intentionally exercising control over the object does not constitute unlawful possession of the object. If you have a reasonable doubt that the defendant intentionally exercised control over the object, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.

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VOLUME 5 - CHAPTER 56

    See FORECITE National™ 56.3.1.4 [Even If Defense Not Proven, Jury Must Still Consider Evidence Of Momentary Possession As To The Elements Of The Charge].