So a few years back, a couple of truck drivers along the border with our northern neighbor got picked up by the border patrol when shipments (and yes, considerably more than 40 grams) of marijuana were discovered in their cargo. In the one case, the marijuana was in an empty space in front of 18 pallets of beer. In the other, the marijuana was hidden inside a modified propane cannister.
Despite the large quantities, the prosecutors ultimately couldn't prove to the jury's satisfaction (despite the large quantities involved) that the two had been carrying the MJ intending to turn it over to someone else at the other end-- most likely because they couldn't show that the truck drivers had any idea what they were carrying.
Did these two walk free? No. Why? They were convicted of possession of a controlled substance-- more than 40 grams of marijuana, a class C felony.
Now, wait a minute: if the jury wasn't sufficiently convinced that they knew what they were carrying to say they were carrying it with intent to deliver, how the hell did they get themselves convicted of possession?
Simple answer: our two unfortunate drivers couldn't prove that they didn't know. The case is State v. Bradshaw, 152 Wn.2d 528, 98 P.3d 1190 (2004), and it appears to stand as good law.
Simple possession in this state is "almost" a strict liability offense-- a category of usually-minor offenses that you don't have to have any kind of criminal mental state to commit. To give you an idea of how it works, here's a rough sketch.
Most crimes require an "evil-doing hand" (actus reus) and an "evil-thinking mind" (mens rea). Murder, for instance: you can commit it by killing somebody on purpose ("DIE!"); as a known, but not intended, side-effect of another action ("Look, pal, it's you or my favorite pen, and I like my favorite pen way better!"); or by acting with amazingly reckless disregard for human life ("You know what's really fun? Driving the wrong way down I-5. You should see the looks on people's faces!"). There are all sorts of permutations and stages and categories, like manslaughter and vehicular homicide, but they all have this much in common: if you kill somebody without having your head on wrong in some way (being a drunk driver counts as having your head on wrong), it's called an accident, and they don't generally lock you up for that.
On the other hand, if you drive through a light while it's red, what you are thinking at the time isn't worth much, unless it's to convince the judge to show mercy. That's a strict liability offense; most traffic infractions are.
So how is drug possession "almost" strict liability? Well, you get a chance to duck it: if you can prove to the jury by a preponderance of the evidence (51% or more) that you really, truly had no idea that you had that package of [fill in illicit substance here], you're off the hook.
That's you, the hypothetical defendant, trying to prove a negative, so it's a mercy that you only have to get the jury as far as "probably didn't know."
It's easy to see the policy behind this one: we don't want every drug mule who gets arrested to get off easily on the "Hey, wait a minute, man, I had no idea that was there!" defense. Doesn't everybody try to use that one?
The problem is this: supposing you're a regular cross-border commuter. Nefarious Canadian drug smuggler A knows of your schedule and home address, and decides that you're the perfect mule. Rather than bring you in on his schemes, risk exposure, and and have to pay you a cut, however, he just duct-tapes a kilo of powder cocaine behind your left-rear fender, gives your address, the make and model of your car, and the location of the package to his buddy, B, in the States, and off you go with your package-- none the wiser. B will pay you(r car) a quiet visit at about 3 AM the following morning.
Wash, rinse, repeat.
When the border guards eventually (inevitably?) pick you up, exactly how are you going to convince the jury that you probably didn't know that package was there? Especially if they haven't caught A or B? There are ways, yes, but sure ways? Even if you can bring in loads of friends to say what an upstanding person you've always been, how can you ever be sure the jury won't look at the bridge of your nose, the way your ears stick out, or the way your tie hangs and think, "Yeah, I suspect that's the face of a hypocrite"?
You can't.
If the prosecutor doesn't have to prove beyond a reasonable doubt that you knew what you were carrying, the jury is no longer bound to weigh a "can't be sure" in your favor. In short, it's a recipe for convicting the innocent alongside the guilty.
As a note, we are apparently one of only two states that handles things this way; the other is North Dakota.
So watch yourselves, out there.
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