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The burden of proof.

During a traffic stop, an officer leans over next to the driver's window and asks, "Do you have anything on you that I should know about?" The driver pulls a pill bottle out of his pocket and says, "Well, these are my pills." He is arrested and charged.

On November 21, 2012, the Florida Supreme Court approved for use Standard Jury Instruction 3.6(n) regarding the affirmative defense that a controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription. Surprisingly, the court was silent as to the burden of persuasion for affirmative defense, instead directing the trial judge to decide the issue of who bears the burden of proof. As discussed below, the burden of persuasion should always be on the prosecution.

If the burden is on the defense, prosecutors would only have to show actual possession of the prescription drug to overcome an initial motion for judgment of acquittal at the close of the state's case in chief. No matter what the defense presents to the jury, since the burden of proof is on the defense to prove the prescription by a preponderance of the evidence, the jury would be free to disregard the defense's evidence and convict. On appeal the prescription holder would also lose, since for the purposes of appeal the court must draw every conclusion and inference therefrom in favor of the state. See Codie v. State, 313 So. 2d 754 (Fla. 1975). The appellate courts would be bound to uphold the conviction. This result must be combined with the three- and 15-year minimum mandatory prison sentences for regularly prescribed amounts of prescription drug possession. This is insane.

There should be two checks on the wrongful conviction. First, the prosecutor should have to come up with some evidence to contradict the defendant's reasonable explanation of innocence. If the burden is on the state, failure to do so would result in a granting of the motion for judgment of acquittal. Indica of illegal possession will be present in true unlawful possession cases. For example, pills would be held loosely or within unusual packaging; the pills would be present with other drug paraphernalia, the pills were being sold, etc.

Practicality would also dictate that the burden should be on the prosecution. In cases where the defendant is innocent, shifting burden to the defense can be critical and run a very high risk of wrongful conviction. Prescription drugs have many legal uses, and are lawfully possessed by millions of individuals every day. It is not, comparatively, a substance (such as methamphetamine) that has no lawful use in any circumstance. However, when the burden is shifted to the defense, skeptical juries commonly discount the testimony of the defendant or loved ones. Therefore, shifting the burden to the defendant to prove his innocence runs a high risk of wrongful conviction.

Whether the state must disprove an affirmative defense beyond a reasonable doubt turns on whether the defense tends to negate an element of the crime alleged. Supporting this is Jackson v. Virginia, 443 U.S. 307 (1979). In Jackson, the Supreme Court held the due process clause requires the prosecution to bear the burden of production for all essential elements of the offense. As Florida Standard Jury Instruction (Criminal) 3.7 reads, "The defendant is not required to present evidence or prove anything." A jury must always be instructed that the prosecution must establish every element of the offense beyond a reasonable doubt. Thus, where a defense serves to negate an element, the defendant cannot be made to bear the burden of production. In a case of prescription drug possession, whether a person is lawfully or unlawfully possessing the substance, is an element of the crime. See McCoy v. State, 56 So. 3d 37 (Fla. 1st DCA 2010). The case Wright v. State, 442 So. 2d 1058 (Fla. 1st DCA 1983), is very helpful when thinking about the possession of prescription drugs. In Wright, an inmate was prosecuted for possession of a weapon by a state prisoner for possessing a screwdriver in a correctional facility. The defense raised the affirmative defense that the inmate rightfully possessed the screwdriver, as he had been issued the tool by the prison for the purpose of investigating manhole covers on the prison grounds. The court held that once the affirmative defense of rightful possession had been validly raised by the defense, the state must disprove the rightful possession beyond a reasonable doubt. The state introduced no evidence from which it could be inferred that appellant was not authorized to possess the screwdriver. Therefore, the evidence failed to exclude every reasonable hypothesis of innocence, and the trial court erred in denying appellant's motion for a judgment of acquittal. This case can be directly analogized to the situation where one possesses prescription drugs. Prescription drugs may or may not be legal to possess, depending on whether authorization exists. If the defense brings forward evidence that the affirmative defense of rightful possession exists, then the state must be required to disprove rightful possession. Failure to do so would result in unconstitutional burden-shifting. Anything less would require an accused citizen to prove themselves innocent.

In Maestas v. State, 76 So. 3d 991 (Fla. 4th DCA 2011), the court upheld the constitutionality of the drug trafficking statutes by reasoning that the state retains the burden in drug trafficking cases. The court explained that the statute does not create a strict liability possession crime because the statute provides that if the defense is raised, the state retains the burden of overcoming the defense by proving beyond a reasonable doubt that the defendant knew of the drugs' illicit nature. Also, Fla. Std. Jury Instr. (Crim.) 25.7 instructs the jury to find the defendant not guilty if they "have reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance." Thus, in order to retain the constitutionality of the prescription drug statutes, once validly raised, the state must retain the burden.

Therefore, the burden of persuasion should be on the state to disprove the affirmative defense of prescription beyond a reasonable doubt, once the defense is raised by competent and substantial evidence. When dealing with this affirmative defense, the trial court must determine whether there is competent and substantial evidence in the record that tends to establish the defense. The evidence establishing an affirmative defense can exist in the state's case in chief, and does not necessarily require the defendant to put on any evidence. Once the court identifies competent, substantial evidence supporting it, the trial court must instruct the jury on the prescription defense. The competent, substantial evidence standard, therefore, is the threshold test for the trial court to apply when determining whether to give the instruction. Once there is a basis for the giving of an affirmative defense instruction, the state must, through rebuttal or inference in its case in chief, produce evidence that would prove beyond a reasonable doubt the nonexistence of the affirmative defense.

Steven N. Gosney

Daytona Beach
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Author:Gosney, Steven N.
Publication:Florida Bar News
Article Type:Letter to the editor
Date:May 1, 2013
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