A colleague of mine likes to explain the law of possession to potential jurors in drug trials by relating an experience he had in college in hopes they might ultimately use their own life experience and common sense when judging the case. If they do, the defendant has a better chance at a fair trial and a good result.
One day after class, he loaned his truck to a friend of his who drove it for a few hours and then gave it back to him. About a week later, his friend told him that he needed to retrieve something he had left in the truck and they went to the parking lot where the friend reached under the driver's seat and pulled out a loaded pistol. My colleague didn't know the gun was there. It was in his truck, a vehicle only he had the keys to and underneath the very seat he had sat in and driven the truck from for days.
He then asks the potential jurors whether he possessed it? Opinions typically differ. And this is a very similar fact situation to those thousands of Texans find themselves in every year when accused of drug possession.
Texas appellate courts have consistently held for several decades that there are a number of factors called "affirmative links" that may generate a reasonable inference that an individual knew of contraband's existence and exercised control over it. To be clear, possession requires both knowledge and the exercise of control. Some of the relevant factors routinely cited by the Courts in drug possession cases are:
- the defendant's presence when a search is conducted;
- whether the contraband was in plain view;
- the defendant's proximity to and the accessibility of the drugs;
- whether the defendant was under the influence of the drugs when arrested;
- whether the defendant possessed other contraband or drugs when arrested;
- whether the defendant made incriminating statements when arrested;
- whether the defendant attempted to flee;
- whether the defendant made furtive gestures indicating attempts to conceal the drugs;
- whether there was an odor of contraband;
- whether other contraband or drug paraphernalia were present;
- whether the defendant owned or had the right to possess the place where the drugs were found;
- whether the place where the drugs were found was enclosed;
- whether the defendant was found with a large amount of cash; and
- whether the conduct of the defendant indicated a consciousness of guilt.
This is not an exclusive list, and it is not the number of links that is dispositive, but rather it is the logical force of all of the evidence. If anything, these links are technical way of describing what many ordinary people would intuitively come up with if asked.
Returning to my colleague's story, a number of the links listed above could lead one to conclude that he possessed the gun. Even knowledge could be inferred. Would a jury believe that he did not know a pistol was under his own seat in his own truck and he didn't know about it or put it there? Would they, instead, from that evidence infer not only his knowledge, but that he had put it there or allowed it to remain?
Unfortunately, this and similar scenarios force many Defendants to waive their 5th Amendment right to remain silent and take the witness stand, usually for the first time. They will be nervous, unsure of themselves, and appear inconsistent under cross-examination by an experienced prosecutor. This may present a sharp contrast with the testimony of a police officer who has likely testified many times and appears cool, certain, and persuasive on the stand. If a jury is not properly educated on this key difference between an inexperienced and an experienced witness during voir dire (what many wrongly refer to as jury selection - it is deselection), then they may inappropriately weigh the witnesses persuasiveness against one another rather than whether the government has proven its case beyond a reasonable doubt. One may not belive a word of an accused's testimony but still not belive that the state has met its burden. Sometimes, the truth never comes out.
Experienced court watchers know that clear cut cases rarely go to trial. The defendant caught with marihuana in the console of his car, high, and rolling papers in his pocket, who runs from the police and then confesses when caught rarely chooses to exercise his right to jury trial. Trial cases typically involve contraband discovered in a place that many people have access to and no one confesses to.
Everyone has been a social guest or host in a home or a car and can understand that one may not know about, let alone exercise control over what another person brings with them or has laying around and usually won't ask. That's no more indicative of a guilty mind than it is of good manners.
In the end jurors are asked to use their common sense and life experience in applying the law as instruced by the judge to the evidence presented, which is what they are asked to do and why we trust our fellow citizens on juries with these questions in the first place.