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To understand what it means in the context of criminal law, one must first understand something of the basic elements that together define a crime. Each and every crime, defined by statute and sometimes refined by court interpretation, is made of several "elements." The government's lawyer must first produce evidence susceptible to an interpretation that could support the existence of each "element" of the crime, then must try to convince the fact-finder (i.e. jury) that its evidence is true.
Each first year law student learns in criminal law class that every crime must at a minimum include at least three elements: 1) identity; 2) mens rea; and, 3) actus reus. From the Latin, mens rea is "guilty mind" - guilty knowledge or intention to commit a prohibited act. Actus Reus is "the prohibited act." Before a person can be found criminally liable for violating a law, a statute must clearly put the person on notice of just which acts are prohibited and subject to criminal law remedies. The mens rea element means that, before a person can be found criminally liable for violating a law, that person must have guilty knowledge or intention to commit the prohibited act.
When it comes to crimes of possession, issues of proof of both mens rea and actus reus can be quite important.
First, is the question of actus reus, or the prohibited act element. Did the accused person actually possess the contraband? What evidence is there to suggest that the person actually possessed a thing? If an item was found in their pocket, would that be evidence suggesting actual possession? No doubt the state would argue this. What if an item was found not on the person, but in some proximity? If the item was not in the person's actual possession, government's and prosecutors have come up with the argument of "constructive possession." "Constructive" is not "actual." It is a legal fiction - a construct. It is meant to be broader than "actual," as well as easier for the state to prove up.
Next, is the question of mens rea, or guilty knowledge or intention to commit the prohibited act. Where the prohibited act is the possessing of an item, in the sense that an item was found on the person or nearby, the person could not be guilty of criminal possession where the person did not know the item was there, or what it was. A real world example of this could be what have been called "blind mules" - unsuspecting travelers crossing an international border with a package of illegal drugs magnetically attached to their car. The would-be smuggler follows the "blind mule" at a safe distance. If the mule is caught, the smuggler goes on freely. If the mule is not caught, the smuggler follows them until she can safely remove the contraband from the unsuspecting mule's vehicle - at a tremendous profit. Now, is the "blind mule" guilty of possession of the illegal drugs in their car, even though the "mule" had no knowledge of it? The answer is "no." (Whether a jury could wrongly find the mule guilty is another matter.) To say "knowing possession" would be redundant. Why? For criminal law purposes, "possession" requires and must include "knowledge" of the thing possessed.
Another basic element of any crime is identity - whether, even if a crime was committed, was the accused person the same person who committed it?
In criminal possession cases, a different kind of identity can also be a key issue of proof - an additional element. This is the identity of the contraband. In drug cases, is the alleged cocaine, for example, really cocaine? Or is it really powder deodorant, as in one recently reported case. In a gun crime case, sometimes the identity of the firearm can be critical. In a sex crime case, for alleged possession of child porn, Gallagher has had a cases where the issue whether the images could be portraying adults has arisen.
"The law is a seamless web," we are told. While we categorize facts and legal concepts for purposes of analysis, is real life things are seldom so neat and clean. When it comes to criminal possession laws, the elements of mean rea, actus reus, and identity of the item sometimes overlap. For example, if you knew that you had a gun in your home, knew you had purchased it for a fair price, but did not know that the serial number on the gun was listed as stolen - does that raise the more the issue of mens rea or of "identity of the item?" Both. What about transitory possessing of an item that does not belong to you, but to someone else?
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