Jury Selection and the Unwitting Possession Defense

For a jury to convict a defendant of possession of marijuana or any controlled substance, the State must prove more than the defendant’s mere presence near the contraband.

As a criminal defense attorney, however, you can’t just take this concept for granted. After all, he wouldn’t be your client in the first place, if he hadn’t been…

  • driving the car where the marijuana was found
  • in the house where the cocaine was found
  • carrying the computer with the porn files…(for example)
  • etc., etc.

What this cries out for, is a good common sense example that every venire member can understand immediately. And here’s one I learned a long time ago (I don’t remember from whom, or I’d give them credit).

Pick a potential juror and tell him a story. Start with the example of someone who is guilty. Then tweak the facts until you come up with a not guilty.

Attorney: Mr. Juror, let’s say that your neighbor decides to take some marijuana over to a friend’s house. He puts a baggie of marijuana on the passenger seat of the car, and drives to his friend’s house. On the way, he gets stopped for a traffic violation, and admits to the officer that the marijuana is his.

Now, even though he was never seen in physical possession of the marijuana, you would agree that if the State proved everything I just said to you, that would probably end up with a guilty verdict?

Juror: Yes, I suppose so.

Attorney: OK, good, we agree. Now let’s say his friend lives in another State, and he decides to mail him the marijuana. Same facts, but this time he places the marijuana in a plain unmarked package, and takes it to FedEx to mail it. He gets caught before he gets there, and once again the State brings you good solid evidence of everything I just told you. Still guilty, right?

Juror: Yes, still guilty.

Attorney: OK. Let’s say this time he actually mails the marijuana. The FedEx employee takes the box from the delivery van to the front door of his friend. The police swarm in (for whatever reason) and stop the FedEx carrier before he can get to the door. The FedEx driver was actually in physical possession of the dope. Why is he not guilty?

Juror: Well, he didn’t have any way of knowing what was in the box…

Obviously, I can’t predict the actual answers here, and if the guy you picked out doesn’t come up with it, move down the row until someone does (they always do).

Then reinforce that answer by saying, “Not only did he not have any way of knowing, but the State didn’t bring any evidence to show that he knew what was in the package”.

Won’t necessarily do you much good when your client has it on his person, but can be great material to get potential jurors talking when your client was arrested in a vehicle, or even in his own home.

Trackbacks (1) Links to blogs that reference this article Trackback URL
http://blog.austindefense.com/admin/trackback/30401
Austin Criminal Defense Lawyer - May 26, 2008 8:53 PM
Most of the time the War on Drugs is actually a pretty sad thing, but every once in a while, something amusing comes out of it:An unwitting passenger arriving at Japan's Narita airport has received 142g of cannabis after a...
Comments (1) Read through and enter the discussion with the form at the end
Donna Davis - January 16, 2008 8:35 PM

Wow. This is awesome. It is WAY past time, after hundreds and hundreds of hours online looking for somebody to point out the obvious - put the person at the scene of the crime, or drop the case. Now, if the world really worked this way, and there were public defenders who cared enough to try, then perhaps innocents would remain, innocent. The sad thing is, my son could hand this to his public defender, so all the work for his public defender is done, and the guy is so lazy he STILL wouldn't use it. So, it's not always the error in the jury, it's the failure in the defender.

Post A Comment / Question Use this form to add a comment to this entry.







Remember personal info?