Lack of Knowledge as an Affirmative Defense

The 2002 Legislative Session saw state lawmakers directly attack the judiciary by legislatively overturning two Florida Supreme Court opinions not only in principle but by name, Scott v. State, 808 So.2d 166 (Fla. 2002) and Chicone v. State, 684 So.2d 736 (Fla. 1996), in the area of statutory interpretation. The Chicone/Scott cases had held that knowledge of the illicit nature of a controlled substance was an element of an offense under Chapter 893. They specifically rejected the notion that such a claim was an affirmative defense or that the legislature intended to punish someone "who possessed an illicit object without knowledge of its illicit nature." Scott, 808 So.2d at 169. The legislature specifically wrote into Florida Statute 893.101 that the findings in Chicone/ Scott were contrary to legislative intent, this despite the fact that few if any of the legislators would have been in either house when Chapter 893 was originally passed, and stating their intent to overrule those cases.

The legislature went on to write into law that lack of knowledge of the illicit nature of a controlled substance was not an element under Chapter 893 but instead was an affirmative defense. This, in spite of the fact that the Chicone Court had questioned the logic of creating such an affirmative defense stating "[l]ack of knowledge could hardly be a defense to a statute that did not require such knowledge." Chicone, 684 So.2d at 744. It appears that the issue is limited to whether a defendant had knowledge of the illicit nature of the object he possessed, whether constructive or actual possession. The Scott Court had made it clear that it was their opinion that there were two types of knowledge or elements of knowledge in possession cases. There is not only the question of knowledge of the illicit nature of the substance but knowledge of the presence of the substance. Scott, 808 So.2d 169. It appears that the state must still prove that the defendant knew the particular object was present and that the defendant was able to exercise dominion and control over the object. Therefore, basic constructive possession case law still appears to be intact.

However, where does that leave the defendant who gets arrested with an ounce of cocaine in an urn he just picked up to deliver thinking that white substance was Aunt Regina, not a Colombian import? Well now the burden has shifted to the delivery boy to prove by some evidence that he really thought that was Aunt Regina in the jar and under F.S. 893.101 the state will have a right to a jury instruction that says that it is presumed that the delivery boy knew that those ashes were cocaine, whether possession was actual or constructive. All the state will have to prove is that he knew he was in possession of some white substance in that jar.

The Chicone Court had raised concerns about that very problem in criminalizing otherwise innocent conduct by dispensing with scienter as an element of possession. Chicone, 684 So.2d at 743. It cited the United States Supreme Courts opinion in Staples v. United States, 114 S.Ct. 1793 (1994) where the High Court indicated its general disfavor with crimes that lack mens rea thus stripping away the common law benefit of lack of evil intent and simply easing "the prosecution's path to conviction ... and [circumscribing] the freedom heretofore allowed juries." Id at 1802. The Chicone Court went on to raise the example setout in Liparota v. United States, 105 S.Ct. 2084 (1985) in which the U.S. Supreme Court raised concerns about a postal worker's unknowing delivery of a package containing cocaine would render his activity criminal. Under a strict interpretation of such a statute one could only hope "that prosecutors would exercise their discretion to avoid such harsh results." Id at 2089.

Proponents of the new legislation will argue, and it may be true, that Florida's legislative override of Scott/ Chicone cannot be read in a way that would lead to such a harsh result because it provides for that affirmative defense of lack of knowledge; thus, what it does do is clearly shift the burden to the defendant to prove his innocence. Can the legislature constitutionally shift the burden to the defendant to disprove a fact that under the law, as it now stands, isn't even an element of the crime? You would think that the Florida Supreme Court would have a problem with this based on their admonition in Chicone, and repeated in Scott, mentioned earlier. It seems on its face that the statute is schizophrenic; of course that fact may simply say something about our legislators.

There are affirmative defenses that the criminal defense attorney is quite familiar with such an alibi, insanity, or battered spouse syndrome, all of which require some form of written notice in order for a defendant to rely on them. All of which have also been upheld constitutionally. No such notice requirement is provided for in F. S. 893.101. It must also be pointed out that despite the Florida Supreme Court's misgivings about doing away with scienter, the Justices have indicated that they believe "the legislature has the power to dispense with the element of intent and thereby punish particular acts without regard to the malicious or wrongful mental attitude of the offender." Chicone, 684 So.2d at 741, fn 8. And here lies the constitutional rub: In order for an affirmative defense to be constitutional it must not negate any element of the crime. In U.S. v. Clemons, 843 F.2d 741, 752 (3rd Cir. 1988), the Court of Appeals struck down a portion of a witness tampering statute that impermissibly shifted the burden to the defendant to disprove an essential element of the crime charged and thereby relieving the prosecution of its burden of establishing each element beyond a reasonable doubt. See also State v. Cohen, 568 So.2d 49 (Fla. 1990) and State v. Cohen, 545 So.2d 894 (Fla. 4DCA 1989). It appears by eliminating the ele-ment of "knowledge of the illicit nature of the controlled substance" the statute may pass constitutional muster because the state is not being relieved of its burden. This especially appears to be true based on the Court's holding that the legislature can do away with the requirement of mens rea. The Florida Supreme Courts opinion in Cohen, supra at 51, explains an affirmative defense as an admission that the allegations are in fact "correct but raises other facts, that if true, would establish a valid excuse or justification or a right to engage in the conduct in question." Therefore the urn delivery boy is admitting possession of the cocaine as a fact but must now come forward with additional facts that convince a jury that he was justified in believing that it was Aunt Regina, God rest her soul, residing in that urn.

However, remember that knowledge of the presence of the contraband, if not it's illicit nature, is still an element of the offense under Chapter 893. Therefore, if arguing complete lack of knowledge, not simply lack of knowledge of the illicit nature of the controlled substance, counsel must object to any instruction on the "permissive presumption" that the defendant knew that the item was illegal. To instruct the jury on the affirmative defense under those circumstances would, without question, unconstitutionally shift the burden on the question of knowledge of the presence of the contraband and relieve the state of it burden.

What can be done to challenge this shift? Can the Florida Supreme Court's reticence to place innocent people in harms way be used to strike this law down? After all, they did quote Judge Wigginton in Chicone, stating that "the requirement of guilty knowledge 'must be observed in order to safeguard innocent persons from being made victims of unlawful acts perpetrated by others and of which they have no knowledge." Chicone, 684 So.2d at 743 citing Frank v. State, 199 So.2d 117, 121 (Fla. 1 DCA 1967). As the legislature ignores the various warnings of not only the Florida Courts, but the U.S. Supreme Court, that to wipe out the scienter requirement raises the ominous possibility that innocent people will be convicted in the lawmakers' attempts to win the war on drugs, we can only hope that logic will rule, it

Gregg Lerman is a board certified criminal trial lawyer in West Palm Beach. He is Chapter Representative for the Palm Beach County Chapter of the Florida Association of Criminal Defense Lawyers.