# Guilty until \*you\* prove your innocence (literally). Don't get busted in Florida! **URL:** \ **Category:** The BBQ Pit\ **Created:** [July 14, 2012, 6:20pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231 "2012-07-14T18:20:58Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 15, 2012, 4:04pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/61 "2012-07-15T16:04:48Z")
> [@Jimmy\_Chitwood](#): > > It’s not strict liability in effect. It’s general intent in effect. If it were strict liability, the affirmative defense about intent wouldn’t be available, but it is. No, unwitting commission of an offense can be a defense for strict liability crimes. For example, the Washington drug trafficking statute I referenced above allows includes an intent defense, despite being characterized by the legislature and courts as a strict liability offense (look at State v. Cleppe, 635 P.2d 435). > [@Whack-a-Mole](#): > > In a murder trial the state needs to prove all the components _beyond a reasonable doubt_. Correct me if I am wrong but they never tell the defendant that he/she is responsible for proving the circumstances in the case. Because the legislature has the power to define what an offense _is_. The Florida legislature has chosen to exclude knowledge as a required element of the offense. The state is still responsible for proving all the relevant circumstances; intent is simply no longer a relevant circumstance, except as an affirmative defense. Don’t get me wrong; I think this is a terrible idea. It is, however, probably within the power of the legislature. [QUOTE=jtgain] Likewise, in 49 states, a jury will infer that if you are in possession of a drug, that you knew you had it. It makes sense, if I have a valuable product in my possession, I probably know about it. [/QUOTE] It makes a big difference as a matter of law, if not fact. If you say that somebody stuffed a package into your hands as the police were busting down the door, and the state produces no evidence to the contrary, that conviction will be tossed notwithstanding the verdict or on appeal. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [July 15, 2012, 4:14pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/62 "2012-07-15T16:14:22Z")
> [@Really\_Not\_All\_That\_Bright](#): > > No, unwitting commission of an offense can be a defense for strict liability crimes. For example, the Washington drug trafficking statute I referenced above allows includes an intent defense, despite being characterized by the legislature and courts as a strict liability offense (look at State v. Cleppe, 635 P.2d 435). From that case, my emphasis: > [@](#): > > That unwitting possession has been allowed as an affirmative defense in simple possession cases may seem anomalous. If guilty knowledge or intent to possess are not elements of the crime, of what avail is it for the defendant to prove his possession was unwitting? Such a provision ameliorates the harshness of the almost strict criminal liability our law imposes for unauthorized possession of a controlled substance. From Florida: > [@](#): > > Section 893.13 does not create strict liability crimes because, although scienter, or “mens rea,” is not an element of these offenses, the statute provides that the defendant’s lack of knowledge may be raised as an affirmative defense. See Flagg v. State, 74 So.3d 138, 141 (Fla. 1st DCA 2011). For a strict liability offense, lack of knowledge is not an available defense. See Kennedy v. Louisiana, 554 U.S. 407, 423, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (concluding that because mistake regarding the minor’s age was not a defense, the statute imposed strict liability); Levinson, Laurie L., Good Faith Defenses: Reshaping Strict Liability Crimes, 78 Cornell L.Rev. 401, 417 & n. 86 (1993) (defining strict liability as “absolute liability” where not only is there no mens rea element, there also is no mens rea defense).Section 893.13, instead, creates general intent crimes. See Wright, 920 So.2d at 24 (“The statute does two things: it makes possession of a controlled substance a general intent crime … and, second, it allows a defendant to assert lack of knowledge as an affirmative defense.”). Because, the premise upon which the trial judge relied was incorrect, so too was his analysis. State v. Washington, 3D11-2244, 2012 WL 2400879 (Fla. Dist. Ct. App. June 27, 2012). ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 15, 2012, 4:20pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/63 "2012-07-15T16:20:44Z")
I stand properly corrected. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [July 15, 2012, 4:50pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/64 "2012-07-15T16:50:57Z")
> [@Whack-a-Mole](#): > > Say I am in an airport with illegal drugs on me but get nervous about going through security so I stuff my drugs in the pocket of your coat you have draped on the chair next to me and hope to retrieve it on the other side of security. > > As it happens the drugs are found in your coat when you go through security. > > You are certainly in possession of drugs and you will be arrested. > > The difference now is that in Florida YOU have to _prove_ (not reasonable doubt but prove) you knew nothing about it. > > Have fun with that. That would be the case in California too. There is no reasonable doubt in the facts you have given. The authorities discovered the narcotics in the possession of the defendant. Where in the United States is that any different? I agree that your defendant is in fact innocent, but there is sufficient evidence against him to convict him. Of course, IANACL, but I stayed at a Holiday Inn once. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 15, 2012, 4:52pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/65 "2012-07-15T16:52:34Z")
> [@Morgenstern](#): > > That would be the case in California too. There is no reasonable doubt in the facts you have given. The authorities discovered the narcotics in the possession of the defendant. Where in the United States is that any different? I agree that your defendant is in fact innocent, but there is sufficient evidence against him to convict him. What evidence is there that the defendant knew he was in possession of the drugs? ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [July 15, 2012, 5:19pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/66 "2012-07-15T17:19:09Z")
> [@Really\_Not\_All\_That\_Bright](#): > > What evidence is there that the defendant knew he was in possession of the drugs? Knowledge is presumed from the defendants possession. The burden to prove that the possession was unknowing is rightfully in the defendants court. Do you think the state would go through the trouble of searching for exculpatory evidence on the defendants behalf when he was caught in possession? \*Section 893.13 of the Florida Statutes states that it is unlawful for an individual to be in actual or constructive possession of a controlled substance unless it is obtained by a prescription from a doctor. Actual possession means an individual had physical possession of the drug. This meaning can include: The drug was on their body, The drug was in their clothing, The drug was within their reach, and/or The drug was in their hand.\* > **[Possession of a Controlled Substance](https://www.roelkelaw.com/practice-areas/criminal-defense/drug-narcotics-crimes/possession-of-a-controlled-substance/)** > > Free Consultation - Call (904) 354-0333 - Roelke Law, P.A. aggressively represents the accused against charges in Drug Crime & Criminal cases. Possession of a Controlled Substance - Jacksonville Drug Crime Lawyer The crime is complete as the facts provided. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 15, 2012, 5:20pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/67 "2012-07-15T17:20:39Z")
You weren’t talking about the Florida law. You were talking about California law. ---
**Author:** ![Rick](https://avatars.discourse-cdn.com/v4/letter/r/9f8e36/32.png) [@Rick](https://boards.straightdope.com/u/Rick)\ **Post date:** [July 15, 2012, 5:37pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/68 "2012-07-15T17:37:55Z")
> [@Really\_Not\_All\_That\_Bright](#): > > What evidence is there that the defendant knew he was in possession of the drugs? Officer: We found four ounces of pot in really not all that bright’s coat pocket. RNATB: but I didn’t know it was there Court: ok then in that case you are free to go. umm, no it doesn’t work that way otherwise the government would never get a drug conviction as every defendant would claim ignorance of the presence of the drugs. ---
**Author:** ![billfish678](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@billfish678](https://boards.straightdope.com/u/billfish678)\ **Post date:** [July 15, 2012, 5:41pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/69 "2012-07-15T17:41:49Z")
> [@Morgenstern](#): > > The drug was within their reach, and/or > The drug was in their hand.\* So if you carry your drugs around with a remote controlled airplane its all good ? 🙂 ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 15, 2012, 5:50pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/70 "2012-07-15T17:50:51Z")
> [@Rick](#): > > Officer: We found four ounces of pot in really not all that bright’s coat pocket. > RNATB: but I didn’t know it was there > Court: ok then in that case you are free to go. > umm, no it doesn’t work that way otherwise the government would never get a drug conviction as every defendant would claim ignorance of the presence of the drugs. Thanks for your contribution. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [July 15, 2012, 5:53pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/71 "2012-07-15T17:53:58Z")
> [@billfish678](#): > > So if you carry your drugs around with a remote controlled airplane its all good ? 🙂 Now, we’ll shift from actual to constructive possession. ---
**Author:** ![billfish678](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@billfish678](https://boards.straightdope.com/u/billfish678)\ **Post date:** [July 15, 2012, 6:10pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/72 "2012-07-15T18:10:25Z")
That was a joke son (the smiley is a hint). ---
**Author:** ![Rick](https://avatars.discourse-cdn.com/v4/letter/r/9f8e36/32.png) [@Rick](https://boards.straightdope.com/u/Rick)\ **Post date:** [July 15, 2012, 6:38pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/73 "2012-07-15T18:38:56Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Thanks for your contribution. Your welcome. BTW great user name/post combo. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 15, 2012, 7:14pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/74 "2012-07-15T19:14:29Z")
Congratulations. You’re the first person to think of that one. Perhaps you can borrow my username, since you don’t seem to understand the vast gulf between arrest and conviction. ---
**Author:** ![aruvqan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aruvqan/32/2891_2.png) [@aruvqan](https://boards.straightdope.com/u/aruvqan)\ **Post date:** [July 15, 2012, 7:33pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/75 "2012-07-15T19:33:32Z")
> [@billfish678](#): > > And then they find drugs and off to jail you go 🙂 Nope, one does not bring the car on base, you park across the street, and since it is an appointment for them to check out a ‘new’ car, it is obvious what one is doing. You can also make an appointment with a cop with a drug dog to check out your car as well. It is one of the public service/things to improve police popularity/community service things. They are not dumb, it is pretty obvious when you show up with a car with paper plates or a brand new registration and you have called for an appointment. ---
**Author:** ![aruvqan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aruvqan/32/2891_2.png) [@aruvqan](https://boards.straightdope.com/u/aruvqan)\ **Post date:** [July 15, 2012, 7:42pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/76 "2012-07-15T19:42:41Z")
> [@John\_Mace](#): > > Can we at least all agree that what this country needs is stricter drug laws? Why? Hasn’t worked so far. Short of automatically shooting every person that is using any drug that is not OTC or has a prescription in the back of the head as soon as they are spotted, it isn’t going to do jack shit. Hell, they more or less do that in China, and they still have a drug problem. And as I recall they bill the family for the round expended. [or at least they used to.] Frankly they should save the money and manpower and make marijuana legal and control it like cigarettes and alcohol. They could perhaps add peyote and other forms of ‘magic mushroom’ to the legal for adults list, and give a serious look at re-evaluating most other drugs. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 15, 2012, 7:55pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/77 "2012-07-15T19:55:56Z")
He was kidding. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 15, 2012, 8:42pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/78 "2012-07-15T20:42:49Z")
> [@Jimmy\_Chitwood](#): > > In 49 states, the jury will be explicitly instructed not to make that inference. The jury will be told that the state must have proved beyond a reasonable doubt that under the circumstances, the defendant did not possess the drugs because of mistake, inadvertence or accident. Why is that an improper inference for a jury to make? It seems like the very type of inferences that juries make all of the time. IOW, how can a state possibly prove, beyond a reasonable doubt, that the weed found in my car was NOT put there by someone else? I can’t imagine that’s the standard anywhere. If so then if a cop pulls me over and finds a bag of weed in the passenger seat, why shouldn’t I remain silent while the prosecution (obviously) fails to prove beyond a reasonable doubt that any of 6 billion other people in the world didn’t put it there? ---
**Author:** ![billfish678](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@billfish678](https://boards.straightdope.com/u/billfish678)\ **Post date:** [July 15, 2012, 8:47pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/79 "2012-07-15T20:47:33Z")
> [@aruvqan](#): > > Nope, one does not bring the car on base, you park across the street, and since it is an appointment for them to check out a ‘new’ car, it is obvious what one is doing. > . Dayum people. Am I going to have to end every joke comment I make with a 🙂 And a THATS A JOKE BTW ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [July 15, 2012, 10:02pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/80 "2012-07-15T22:02:56Z")
> [@jtgain](#): > > Why is that an improper inference for a jury to make? It seems like the very type of inferences that juries make all of the time. I suspect that the issue here is more semantics than substance, but it’s an improper inference because of the presumption of innocence, and because of the elements that make up the crime called “Possession of a controlled substance” or whatever. Taking my state as an example, simple possession of a drug is illegal because of a law that prohibits > [@](#): > > Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act. First three words, right? Right in there. And everybody knows that the rule is that you have to prove every element of a crime beyond a reasonable doubt to put somebody in jail. If it isn’t proven, and it’s part of the offense, you aren’t guilty of the offense. So in a trial for possession of a drug under that statute, “knowingly or intentionally” has to be proven beyond a reasonable doubt. Allowing the jury to just assume it’s true is the opposite of that. Might as well invite them to infer that based on the fact that he had drugs, he probably killed somebody at some point, too. That isn’t to say that the jury can’t make any inferences at all to get to that point. Their inferences just need to be based on facts in evidence. I think you’re suggesting that you think that based on the facts of the average case, a jury will almost always be able to get there, and that’s fine. But they can’t get there on their own without those facts - except in Florida, where the state doesn’t have to prove it at all. If a guy runs past you in Pennsylvania and hands you a bag, and then a cop comes around the corner and tackles you, and there’s heroin in the bag, where’s the evidence of your intent or knowledge? If it happens in Florida, suddenly we’re asking where’s the evidence of your _lack_ of intent or knowledge? It’s just your word in either case, of course, but there’s a difference. [Previous page](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231.md?page=3) [Next page](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231.md?page=5)