THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow Collection Table of Contents

Drugs, Controlled Substances: Knowledge Of Substance

    1.    Prosecution Must Prove Knowledge That Items Contained Contraband
    2.    Lack Of Knowledge: Factors To Consider And Burden Of Proof
    3.    Prosecution Must Prove Both Actual Knowledge And Control Over Contraband
    4.    Presence Of Residue/Small Amounts Of Contraband Insufficient To Establish 
           Knowledge Of Contraband
    5.    Defendant Must Know Or Believe That Substance Is Contraband

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

1.    Prosecution Must Prove Knowledge That Items Contained Contraband

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    No defendant can be convicted of the offenses charged in this indictment unless the government has proven beyond a reasonable doubt that such defendant had actual knowledge that the _____________ [insert item containing contraband] contained _______________ [contraband e.g., cocaine]. The government has not met its burden of proof if all that it is shown is that a defendant suspected that there was something suspicious about the _____________ [insert item containing contraband] or should have been suspicious about the _____________ [insert item containing contraband] or [its] [their] their contents. Unless actual knowledge by a defendant has been proven beyond a reasonable doubt, that defendant must be acquitted of each of the offenses with which he or she is charged.

    It is __________’s (name of defendant) theory of defense that (he/she) did not have knowledge that the __________ (item(s), e.g. cartons) contained ___________ (contraband, e.g., cocaine) at the time (he/she) picked them up at the __________ (location) and that (he/she) did not suspect that there was anything unusual about the shipment [until (he/she) observed that he was apparently being followed by numerous automobiles]. If the evidence you have heard in support of the defendant's theory of defense creates in your mind a reasonable doubt that (he/she) had actual knowledge that the __________ (item(s), e.g. cartons) contained ___________ (contraband), then you must acquit (him/her) on each count of this indictment.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.4.3.14 [Defendant Must Have Had Knowledge That The Item Possessed Was The Contraband Charged].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

2.    Lack Of Knowledge: Factors To Consider And Burden Of Proof

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In considering whether a defendant had actual knowledge that the __________ (item(s), e.g. cartons) contained ___________ (contraband, e.g., cocaine), you should consider all of the acts and declarations of that defendant which appear to be inconsistent with such knowledge as well as those acts and declarations which are consistent with such knowledge. The defendant has no burden of proving that (he/she) lacked knowledge; the government must prove beyond a reasonable doubt that (he/she) had actual knowledge before it is entitled to a conviction on any count.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.4.3.14 [Defendant Must Have Had Knowledge That The Item Possessed Was The Contraband Charged].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

3.    Prosecution Must Prove Both Actual Knowledge And Control Over Contraband

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    You may not find that the defendant possessed ___________ (contraband, e.g., cocaine) merely because it was allegedly found in ____________ (location found, e.g., a house, a car, etc.) which (he/she) jointly owned with others, and to which still other people had access.

    You must find the defendant not guilty of possessing ___________ (contraband, e.g., cocaine) [with intent to deliver] unless the government proves beyond a reasonable doubt that the defendant had both actual knowledge of the presence of ___________ (contraband, e.g., cocaine) in the ____________ (location found, e.g., a house, a car, etc.) and control over it.

    When the prosecution relies upon circumstantial evidence to establish the defendant's knowledge, that is, that the defendant actually knew the alleged ___________ (contraband, e.g., cocaine) was in the ____________ (location found, e.g., a house, a car, etc.), such evidence must do more than raise a suspicion that the defendant had such knowledge. The circumstantial evidence must exclude all reasonable possibility that someone else could have placed the substance in the ____________ (location found, e.g., a house, a car, etc.) during defendant's absence and without (his/her) knowledge. Before you may find __________ (name of defendant) guilty on this sort of circumstantial evidence, you must unanimously find that every reasonable theory consistent with the defendant's lack of knowledge of the presence of the substances in the ____________ (location found, e.g., a house, a car, etc.) has been disproven beyond a reasonable doubt. If you are unable to make such a finding, you must not return a verdict of guilty on Count ______.

Solanov v. State, 426 N.E.2d 705 (Ind. App. 1981); Pier v. State, 400 N.E.2d 209 (Ind. App. 1980); People v. Simpson, 104 Mich. App. 731, 305 N.W.2d 249 (1980); Commonwealth v. Chenet, 373 A.2d 1107 (1977); Moreland v. State, 133 Ga. App. 723, 212 S.E.2d 866 (1975); People v. Wolski, 27 Ill. App. 3d 526, 327 N.E.2d 308 (1975); Griffin v. State, 276 So. 2d 191 (Fla. App. 1973); Willis v. State, 320 So. 2d 823 (Fla. App. 1973); Osburn v. State, 497 P.2d 471 (Okla. Cir. 1972); State v. Haynes, 25 Ohio St. 2d 264, 267 N.E.2d 787 (1971); People v. Schriber, 34 A.D.2d 852, 310 N.Y.S.2d 551 aff'd 29 N.Y.2d 780, 327 N.Y.S.2d 68, 277 N.E.2d 187 (1971); Markman v. State, 210 So.2d 486 (Fla. App. 1968); Frank v. State, 99 So.2d 117 (Fla. App. 1967).

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See NCJIC Chapter 47: Knowledge.

See generally NCJIC 56.2 [Possession: Sufficiency Of Proof].

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.4.3.14 [Defendant Must Have Had Knowledge That The Item Possessed Was The Contraband Charged].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

4.    Presence Of Residue/Small Amounts Of Contraband Insufficient To Establish Knowledge Of Contraband

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    The possession of a pipe containing burnt ________ (controlled substance, e.g., marijuana) residue and/or very small amounts of ________ (controlled substance, e.g., marijuana) does not, by itself, establish the defendant's knowledge of the presence of ________ (controlled substance, e.g., marijuana). The defendant must be aware not only of (his/her) possession of the pipe itself, but also that the pipe contained ________ (controlled substance, e.g., marijuana) at the time (he/she) possessed it.

Kabat v. State, 76 Wis.2d 224, 251 N.W.2d 38, 40 (1977).

    It is not scientific measurement and detection which is the ultimate test of the knowing possession of a drug, but rather the awareness of the defendant of the presence of the drug. Guilt or innocence on a charge of illegal possession may not be determined solely by the skill of the forensic chemist in isolating a trace of the drug in articles possessed by the defendant. Rather, the presence of the drug must be reflected in such amount or form as to establish the defendant's knowledge of the presence of the drug beyond a reasonable doubt.

Kabat v. State, 76 Wis.2d 224, 251 N.W.2d 38, 40 (1977).

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See NCJIC Chapter 47: Knowledge.

See generally NCJIC 56.2 [Possession: Sufficiency Of Proof].

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.4.3.14 [Defendant Must Have Had Knowledge That The Item Possessed Was The Contraband Charged].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

5.    Defendant Must Know Or Believe That Substance Is Contraband

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    An essential element of the offense which the State must prove is that the defendant at the time of the alleged possession knew that the substance was ___________ (contraband, e.g., cocaine). Such guilty knowledge, or its equivalent, guilty belief, may be proven by circumstantial evidence; but it is not sufficient that such circumstantial evidence convinces you beyond a reasonable doubt that the defendant ought to have known that the substance was ___________ (contraband, e.g., cocaine). It must go a substantial step further and satisfy you that (he/she) did know or believe that the substance was ___________ (contraband, e.g., cocaine), before you may find (him/her) guilty.

Oosterwyk v. State, 242 Wis. 398, 405 (1943); Wis. J.I.-Criminal §1481.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.4.3.14 [Defendant Must Have Had Knowledge That The Item Possessed Was The Contraband Charged].