# 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:** 5
**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, 10:30pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/81 "2012-07-15T22:30:01Z")
> [@Jimmy\_Chitwood](#): > > 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. I think that this is my problem with understanding the difference. In PA or FL, I will tell the cop or the prosecutor that some guy ran past me and handed me the bag of heroin, or I will remain silent. In PA, if I remain silent, the jury will infer that since a cop saw me with heroin in my hand, I knew I had it in my hand. Guilty. In FL, if I remain silent, no inference needed. Guilty. In PA, if I explain that some guy handed me the heroin, the jury will examine all of the surrounding facts and circumstances and determine if I’m a lying drug addict, or if someone else really did hand it to me. Guilty or not depending on my story. In FL, if I explain that some guy handed me the heroin, the jury will examine all of the surrounding facts and circumstances and determine if I’m a lying drug addict, or if someone else really did hand it to me. Guilty or not depending on my story. Am I missing something, or is the difference in the .001% of cases where the jury deliberations come down to a coin flip as to who to believe, so that in FL I’m guilty, but in PA I’m not? ---
**Author:** ![Kenm](https://avatars.discourse-cdn.com/v4/letter/k/bc79bd/32.png) [@Kenm](https://boards.straightdope.com/u/Kenm)\ **Post date:** [July 15, 2012, 10:54pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/82 "2012-07-15T22:54:31Z")
> [@aruvqan](#): > > One of the main reasons that when I buy a used car the first thing I do is make an appointment with the dog handlers on base to run a drug sniffer through it. Good plan. I bought a car, kept it for six months then cleaned it up to sell it. I found a vial of hash oil jammed down the back seat. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [July 15, 2012, 11:16pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/83 "2012-07-15T23:16:29Z")
> [@jtgain](#): > > I think that this is my problem with understanding the difference. In PA or FL, I will tell the cop or the prosecutor that some guy ran past me and handed me the bag of heroin, or I will remain silent. > > In PA, if I remain silent, the jury will infer that since a cop saw me with heroin in my hand, I knew I had it in my hand. Guilty. > > In FL, if I remain silent, no inference needed. Guilty. > > In PA, if I explain that some guy handed me the heroin, the jury will examine all of the surrounding facts and circumstances and determine if I’m a lying drug addict, or if someone else really did hand it to me. Guilty or not depending on my story. > > In FL, if I explain that some guy handed me the heroin, the jury will examine all of the surrounding facts and circumstances and determine if I’m a lying drug addict, or if someone else really did hand it to me. Guilty or not depending on my story. > > Am I missing something, or is the difference in the .001% of cases where the jury deliberations come down to a coin flip as to who to believe, so that in FL I’m guilty, but in PA I’m not? Good way to articulate the same thought I had. Whats the real practical difference? Someone said it upthread–I’m sure just about everyone says “it’s not my stuff, I don’t know how it got there” or some variation. In Florida or Pennsylvania it will be credible or not. Not seeing the real difference in practice. Maybe I’m missing it too. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [July 15, 2012, 11:21pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/84 "2012-07-15T23:21:23Z")
> [@jtgain](#): > > Am I missing something . . . You dropped the bag of heroin when you were flipping the coin. ---
**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 16, 2012, 12:29am UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/85 "2012-07-16T00:29:18Z")
It’s not just “credible or not.” You can have the same credibility and lose if it’s your burden instead of the state’s. Juries have a tough job in most cases, and changing the standard changes the result. Let’s use **Kenm** ’s scenario. Ken buys a used car and gets pulled over. He tells the officer to go ahead and look around in the car if he wants, whereupon a controlled substance is discovered. Let’s say there’s no issues whether he possessed the drugs or whether they were drugs. The case is going to depend, in either state, on whether he knew. Picture the whole spectrum of possible jury determinations from 100% sure he’s not guilty to complete coin flip to 100% sure he’s guilty. On the left you’ve got all kinds of doubt, and then as you move toward the right you’ve got less doubt and less doubt, until at some magical point you’ve got no reasonable doubt left. In Pennsylvania, Ken is arguing that the Commonwealth’s evidence hasn’t reached that point when it comes to knowledge. If they haven’t, Ken’s not guilty. That’s the measurement the jury’s tasked with. In Florida, Ken’s already technically guilty of the offense - we’re past the magical point on “did he possess” and “was it drugs.” The question for the jury (I assume) is whether Ken has established by “preponderance of the evidence” that he didn’t know he had drugs in his car. Preponderance of the evidence means did he get past the 50/50 point on _lack_ of knowledge. If he didn’t, he has no defense, and we already know he’s guilty otherwise. Since the burden of proof is switched over to Ken, not only does he lose where there’s no credible evidence at all, he also loses all that space on the line between his “preponderance” and the state’s “beyond a reasonable doubt.” Technically, sure, it’s true that the question comes down to whether his story is credible or not, but all the points on the line between those two points represent cases where Florida gets a conviction and other states don’t, because while Ken can’t establish that he didn’t know, the state wouldn’t be able to prove that he _did_. I think it’s fair to say that juries end up thinking a defendant is probably guilty, but not guilty beyond a reasonable doubt, at least some of the time. I’m not equipped to argue whether that’s only .001% of the cases. ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [July 16, 2012, 12:32am UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/86 "2012-07-16T00:32:21Z")
Take a number and wait your turn, traffic violations have had this guilty till proven innocent status long before. ---
**Author:** ![Grrr](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/grrr/32/146_2.png) [@Grrr](https://boards.straightdope.com/u/Grrr)\ **Post date:** [July 16, 2012, 1:22am UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/87 "2012-07-16T01:22:25Z")
So, if the local Florida news reporters are reporting on a drug case; does that mean they no longer have to use the word ‘alleged’? Instead, couldn’t they just say: “Drug smuggler **Whack-a-Mole** arrested…” Serious question. ---
**Author:** ![digs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/digs/32/14889_2.png) [@digs](https://boards.straightdope.com/u/digs)\ **Post date:** [July 16, 2012, 4:46am UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/88 "2012-07-16T04:46:16Z")
> [@Bricker](#): > > Come back when you understand what you’re talking about. That’s your first comment in a thread? Harsh, duuude… ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 16, 2012, 12:41pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/89 "2012-07-16T12:41:20Z")
> [@Jimmy\_Chitwood](#): > > 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’s not an inference that a reasonable juror could or should make. It doesn’t follow. However, if you see a guy with a lit joint in his hand, it is reasonable to assume that he knew he was in possession of marijuana. On the standard, I think that we are in full agreement. It creates a rebuttable presumption that shifts more of the burden on the Defendant. Many laws do this. It may be bad policy or a stupid law, but I can’t see how this is unconstitutional, a strict liability offense, or a “guilty until proven innocent” standard. We might as well say that DUI laws are “guilty until proven innocent” because of a per se BAC standard. ---
**Author:** ![Clothahump](https://avatars.discourse-cdn.com/v4/letter/c/51bf81/32.png) [@Clothahump](https://boards.straightdope.com/u/Clothahump)\ **Post date:** [July 16, 2012, 1:44pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/90 "2012-07-16T13:44:22Z")
IANAL and all that, but… Hasn’t Florida simply redefined this law to include an affirmative defense to possession? An affirmative defense is where the defendant says, basically, “Yeah, I did it, but here are reasons why it was okay for me to do it.” Classic example is self-defense. Some bozo jumps me in a parking lot. I defend myself and in so doing, I put his ass in the hospital. In order to save his sorry ass, he claims that I assaulted him and I am arrested. When I go to court, I claim self-defense. I’m stating, in effect, “Yes, I did kick him in the gut and rupture his spleen. But I did so because he attacked me first.” I then have to prove that, and if I have witnesses or better yet, some security cam footage, then I’m off the hook. It seems to me that this is the same sort of thing. I’d have to go into court and say “Yes, the drugs were found in my coat pocket, so technically I was in possession of them. But I don’t know how they got there, because I didn’t put them there.” Granted, unless I can come up with some footage of someone slipping it into my pocket, that’s gonna be a helluva lot harder to prove than my example of self-defense above. ---
**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 16, 2012, 2:10pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/91 "2012-07-16T14:10:29Z")
> [@Shakes](#): > > So, if the local Florida news reporters are reporting on a drug case; does that mean they no longer have to use the word ‘alleged’? > > Instead, couldn’t they just say: “Drug smuggler **Whack-a-Mole** arrested…” > > Serious question. They _can_ say whatever they like. If you read the thread, you’d know whether or not they _will_ say that. > [@Clothahump](#): > > Hasn’t Florida simply redefined this law to include an affirmative defense to possession? An affirmative defense is where the defendant says, basically, “Yeah, I did it, but here are reasons why it was okay for me to do it.” It’s more that they’ve redefined the law to _exclude_ an element of the crime, and then made that element an affirmative defense. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 16, 2012, 2:35pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/92 "2012-07-16T14:35:48Z")
> [@digs](#): > > That’s your first comment in a thread? > > Harsh, duuude… No, experienced. By that I mean I’m psychic. I can see the future. When this thread started, I peered into my crystal ball and foresaw days upon days of people patiently explaining the difference between changing the elements of a crime with changing the burden of proof, and **Whack-a-Mole** standing proudly, defending the Good Ship Ignorance against all who would scuttle her. I quickly determined that this time, I would avoid the frustrating fate of arguing with someone who crafts his own definitions for stuff and then refuses to acknowledge that the rest of the world defines these words differently. I see that **RNATB** , who has taken up the mantle in my abdication, is doing an excellent and patient job of correctly explaining the situation, and that as predicted, **WaM** refuses to budge. The only difference is I got plenty of useful things done over the weekend and didn’t once stress over the fact that despite clear, calm, and well-written explanations, someone on the Internet was wrong. It was a liberating feeling. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [July 16, 2012, 3:40pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/93 "2012-07-16T15:40:10Z")
Just out of vulgar curiosity, how did the prosecution prove I knew I had the drugs before this law was passed? I have no opinion on whether or not this is a good law, but how did the police counter the nearly universal “I have no idea how those drugs got in the trunk” alibi? Regards, Shodan ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 16, 2012, 4:15pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/94 "2012-07-16T16:15:25Z")
> [@Shodan](#): > > Just out of vulgar curiosity, how did the prosecution prove I knew I had the drugs before this law was passed? > > I have no opinion on whether or not this is a good law, but how did the police counter the nearly universal “I have no idea how those drugs got in the trunk” alibi? > > Regards, > Shodan In general, police need to show either _constructive possession_ or actual possession of contraband. When the contraband is found in a trunk, as in your hypothetical situation, then the police must show that the accused exercised dominion and control over the substance, and that the defendant had knowledge about the character and presence of the contraband. How to show that knowledge? Simple proximity is not enough. It’s one factor, but alone can never prove knowledge. Knowledge may be proved by evidence of acts, declarations or conduct of the accused from which an inference may be fairly drawn that he knew of the existence of contraband at the place where contraband was found. Evidence that the accused could see the material, evidence that the accused had touched the material, evidence that the accused had exclusive access to the area in question – all of these are probatve.i ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [July 16, 2012, 4:20pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/95 "2012-07-16T16:20:13Z")
Thank you as usual. Regards, Shodan ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [July 16, 2012, 4:35pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/96 "2012-07-16T16:35:20Z")
> [@Bricker](#): > > No, experienced. > > By that I mean I’m psychic. I can see the future. > > When this thread started, I peered into my crystal ball and foresaw days upon days of people patiently explaining the difference between changing the elements of a crime with changing the burden of proof, and **Whack-a-Mole** standing proudly, defending the Good Ship Ignorance against all who would scuttle her. Don’t quit your day job. You suck as a psychic. ---
**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 16, 2012, 4:40pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/97 "2012-07-16T16:40:13Z")
> [@jtgain](#): > > 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? It’s not quite as complicated as you make it sound. Juries can certainly infer from the facts presented that the defendant knowingly possessed the weed or whatever. However, juries may not make inferences that disregard unrebutted testimony - or at least can’t expect their verdicts to stand up on appeal (or on a motion for JNOV). So, if you claim the weed was put there by somebody else, and the state doesn’t bother to put on any proof to the contrary, you will probably go free. That proof doesn’t have to be proof, in and of itself, that you did put the weed there. It just has to rebut your claim sufficiently for the jury to disregard it\*, so they can go back to drawing inferences. I leave it to Bricker to explain how much of a difference this makes in practice. ---
**Author:** ![Sitnam](https://avatars.discourse-cdn.com/v4/letter/s/6a8cbe/32.png) [@Sitnam](https://boards.straightdope.com/u/Sitnam)\ **Post date:** [July 16, 2012, 5:20pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/98 "2012-07-16T17:20:25Z")
I wonder where the UPS union lobby was on this one. ---
**Author:** ![BigAppleBucky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigapplebucky/32/178_2.png) [@BigAppleBucky](https://boards.straightdope.com/u/BigAppleBucky)\ **Post date:** [July 16, 2012, 6:00pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/99 "2012-07-16T18:00:55Z")
Not nearly as bad as the Florida situation, but not good either. > **[Opinion | Distributing, Then Confiscating, Condoms (Published 2012)](https://www.nytimes.com/2012/07/16/opinion/distributing-then-confiscating-condoms.html?_r=1)** > > Law enforcement efforts should not interfere with the right of anyone, including sex workers, to protect their health. Women (likely sex workers) threatened with jail if they carry more than a couple of condoms. So the health department passes them out and the police confiscate them as evidence. There is a proposed law in NYS to ban condoms as evidence of prostitution. ---
**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 16, 2012, 6:27pm UTC](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231/100 "2012-07-16T18:27:57Z")
That’s not really in the same vein at all, but by damn that policy (or lack thereof) needs to be re-thought. [Previous page](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231.md?page=4) [Next page](https://boards.straightdope.com/t/guilty-until-you-prove-your-innocence-literally-dont-get-busted-in-florida/628231.md?page=6)