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96.3 Prison Crimes: Defenses And Defense Theories

    96.3.3 Possession Of Contraband In Jail Or Prison

    96.3.3.1 Possession Issues
    96.3.3.2 Possession Of Drugs In Jail Or Prison: Lack Of Knowledge As Defense Theory
    96.3.3.3 Possession Of Drugs In Jail Or Prison: Defense Theory That Use Alone Does Not Prove Possession
    96.3.3.4 Possession Of Drugs Or Alcohol In Jail Or Prison/Bringing Drugs or Alcohol Into Jail Or Prison: Chain of Custody As Defense Theory
    96.3.3.5 Possession Of Drugs In Jail Or Prison: Defense Theory That Possession During Work Furlough Is Not Sufficient
    96.3.3.6 Bringing Drugs or Alcohol Into Jail Or Prison: Defense Theory That Mere Possession Is Insufficient
    96.3.3.7 Prison Crimes: Additional Defenses And Defense Theories

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    96.3.3.1    Possession Issues

    See FORECITE National™ Chapter 56 [Possession].

RESEARCH NOTES:

See generally, FORECITE National™ 305.9.5 [In Prison Crimes].

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    96.3.3.2    Possession Of Drugs In Jail Or Prison: Lack Of Knowledge As Defense Theory

PRACTICE NOTE: See People v. Carrasco (CA 1981) 118 CA3d 936, 944-49 [173 CR 688]; Moore v. People (CO 1970) 467 P2d 50, 52 [knowledge of the presence and nature of the substance required]; Howard v. State (FL 1985) 467 So2d 445, 446 [knowledge of presence of the contraband]; Doby v. State (FL 1977) 352 So2d 1236 [evidence that envelopes of marijuana were found secreted in defendant's wheelchair upon his return to correctional institute from furlough was insufficient to show that defendant knew the marijuana was in his chair]; State v. Winters (UT 1964) 396 P2d 872, 874 [knowledge of presence and narcotic character of drug].

RESEARCH NOTES:

See generally, FORECITE National™ 305.9.5 [In Prison Crimes].

RELATED FEDERAL MODEL INSTRUCTIONS: 

See FORECITE National™ 96.1.2 [Prison Crimes: Federal Circuit Model Instructions And Notes].

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 VOLUME 7 - CHAPTER 96

    96.3.3.3    Possession Of Drugs In Jail Or Prison: Defense Theory That Use Alone Does Not Prove Possession

    See FORECITE National™ 88.4.3.7 [Possession Of Drugs, Controlled Substances: Ingestion/Use Alone Not Sufficient To Prove Possession].

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    96.3.3.4    Possession Of Drugs Or Alcohol In Jail Or Prison/Bringing Drugs Or Alcohol Into Jail Or Prison: Chain Of Custody As Defense Theory

PRACTICE NOTE: There may be chain of custody issues in prosecutions for possession or use of contraband in jail or prison. Because the arrests are usually made by jail or prison personnel, adequate chain of custody procedures may not be followed. (See e.g., State v. Lewis (ME 1979) 401 A2d 645, 647 [absent evidence establishing chain of custody, hypodermic syringe inadmissible as precise object in defendant's possession in prosecution for trafficking in prison contraband]; Davis v. State (AL 1994) 648 So2d 658, 659 [to admit prisoner's urine samples, chain of custody for samples had to be established]; Sherer v. State (AL 1995) 668 So2d 174 [positive urine test result, alone, was insufficient, in prison disciplinary proceeding, to support finding that inmate used marijuana, where state failed to show chain of custody of inmate's urine sample, either by oral or documentary evidence]; Thomas v. McBride (ND 1998) 3 FSupp2d 989 [prison officials using positive drug test results to deprive an inmate of good time credits must submit sufficient documentation or other evidence to establish a chain of custody of the urine sample provided by the prisoner].)

    See also FORECITE National™ 89.5.12 [Drunk Driving: Chain Of Custody Challenge To Blood Alcohol Test].

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials 11 [Chain of Custody: General Principles].

See also generally, FORECITE National™ 305.9.5 [In Prison Crimes].

RELATED FEDERAL MODEL INSTRUCTIONS: 

See FORECITE National™ 96.1.2 [Prison Crimes: Federal Circuit Model Instructions And Notes].

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    96.3.3.5    Possession Of Drugs In Jail Or Prison: Defense Theory That Possession During Work Furlough Is Not Sufficient

PRACTICE NOTE: An inmate who possesses drugs at the place of his work furlough does not violate the California statute proscribing possession of drugs in jail or prison. (People v. Carrasco (CA 1981) 118 CA3d 936, 947 [173 CR 688].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.9.5 [In Prison Crimes].

RELATED FEDERAL MODEL INSTRUCTIONS: 

See FORECITE National™ 96.1.2 [Prison Crimes: Federal Circuit Model Instructions And Notes].

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    96.3.3.6    Bringing Drugs or Alcohol Into Jail Or Prison: Defense Theory That Mere Possession Is Insufficient

PRACTICE NOTE: Evidence of defendant's mere possession of marijuana in correctional institution is insufficient for conviction of introducing drugs into or upon grounds of any correctional or penal institution. (See e.g., Parrish v. State (FL 1982) 423 So2d 617, 618.) Proof that the accused brought the drug into prison is required. (See 10 Ops. California Atty. Gen. 247 (1980).)

RESEARCH NOTES:

Annotation, Nature And Elements Of Conveying Contraband To Prisoner, 64 ALR4th 902.

See also generally, FORECITE National™ 305.9.5 [In Prison Crimes].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 96.1.2 [Prison Crimes: Federal Circuit Model Instructions And Notes].

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    96.3.3.7    Prison Crimes: Additional Defenses And Defense Theories

PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)