Any experiences on discussing possession in voir dire--in particular: possession by more than one person can be possession by both even if one fesses up and the other doesn't AND any ideas on parcing the difference between knowingly and intentionally possessing? Or is it too convoluted?
To me, it is very hard to apply knowingly or intentionally to what is a mere relationship rather than conduct. 6.02(a) refers only to conduct. 6.01(b) only uses knowingly. While 6.01(a) includes possession as conduct it is not (or at least not necessarily) either an act or omission. I actually prefer to ignore intentionally in charging these offenses and just focus on knowing "conduct." But, it truly just gets back to affirmative links no matter what you want to call the "mental state." To me affirmative link is best explained as something which indicates the actor has both knowledge of the contraband and desire or reason to be connected to it.
Depending on the facts of your case, PC Sec 6.01 may be helpful to point out, especially (b). Basically it can be argued that a person who becomes aware of the presence of contraband has a limited time to leave or it becomes his for possession purposes. Sometimes that helps alleviate any problems the jury may have in distinguishing between ownership and possession.
After defining the term as "care, custody, control, or management," I would try to point out examples from the jurors' experience when they have jointly possessed something. For example, if they share a car with their spouse, they may both possess the car, even though it may be out in the parking lot right now and neither one of them is in contact with it. If I loan a tool to my neighbor, he is in possession of it, but I may be as well, since I may be asserting management over the tool by virtue of requiring that my neighbor only use it for a certain project and return it at a certain time. You should be able to analogoze your facts to some everyday-type possession that the jurors will understand.
If you're talking about drugs, think about groceries, or a television, or other household items that are generally understood to be common possessions of the people in the house.
Suzanne, if you get some time, I'd be glad to chat with you about two or three examples that I've used for multiple person possession.
One quick one: what if pizza were contraband? Can you share a pizza? Is it a personal pizza? What if it were a medium? Large? Extra Large?
Six people sitting around table with a pizza on it. What if it were still hot and no one had taken a slice yet? Who's pizza is it? Were they going to share it? How can you tell?
What If I call from the office and order a pizza to be sent to my house, where my wife is waiting to have some pizza with me when I get home?
Search warrant is executed and my wife is caught with two mediums and some breadsticks. She didn't pay for it. Is it her pizza? What if the pizzas had different toppings?
I'm lactose intolerant. My pizza wouldn't have cheese on it. Hers would have sausage and extra pepperoni. What factors would make a difference to indicate that she was intending on having some of the pizza?
I'm not home when the warrant is run, but I paid for the pizza. Should I be charged with possession?
I'm not in trial this week. Give me a call if you still need more ideas.
Great Phillip! Now I'm hungry.
I like the pizza examples, Philip.
One other thing to emphasize: while an owner is almost always a possessor, the converse is not always true. Many people get hung up on "whose was it?" when the real question is only "who possessed it." Thus the typical response to the discovery of contraband "That's not mine."
"That's not mine" is not a defense. If it's in your mouth or your pocket, I don't really care if you own it or not.
Thanks for all the suggestions! I used the pizza example in my closing. But...hung jury. My issue was the co-defendant came to court and swore that the heroin was his (but not that she didn't know about it, or that she didn't allow it, or that she didn't have time and custody to throw it out). I think the jury felt sorry for her, she cried on the stand about his heroin addiction. I hammered on what possession means....but we will have to decide whether to try it again or just let it go with these facts. I think we could prove she knew in general he was a user, but this particular two hits that were found in her cargo compartment of her minivan, how to prove she knew those exact items were in her car? He says he put them there without her knowledge...and even though I don't buy it for one second (other circumstances exist), I don't know I can prove otherwise to 12 people.
How many jurors voted to convict?
2 holdouts for guilty. Started with three. Jury came back with multiple notes saying they were divided..then "increasingly polarized." Both sides were adamant, basically. I'm worried that the best I will do with these facts is a hung jury yet again.
Time to flush it.
If there is any solice in a hung jury, it is that if we never again hear from the defendant, we got what we wanted. And, more likely, if she does not learn from her encounter...you will get another chance and in all probability it will be with better facts.
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