Knowledge and Mental State

Knowledge and Mental State

Proving that a defendant performed the act of possession answers only one of the two questions a possession prosecution raises. The Code's rule that possession counts as an act, taught above, asks whether the defendant knowingly procured or received the item, or stayed aware of control long enough to end it. Once that threshold is met, the statute defining the particular offense decides what the defendant must also have known or intended about the item. That required state of mind is the offense's mens rea, and the prosecution must prove it beyond a reasonable doubt like every other element, because the Due Process Clause protects an accused against conviction except on proof of every fact necessary to constitute the crime.¹

The two inquiries are easy to blur, because the same facts often bear on both. Evidence that a defendant picked up a bag and carried it away may show a knowing receipt for the act and also show awareness of the bag for the mental state. They still have different sources and different consequences. The act requirement comes from the general part of the criminal law and applies to every possession offense, so its absence ends the case whatever the statute says. The mental-state question comes from the words of the offense-defining statute, and the answer changes from one statute to the next, just as first-degree murder under the laws of the states the District of Columbia Code drew upon required premeditation and deliberation in addition to an intent to kill.² For possession, the question splits in two: whether the defendant had to know the item was present, and whether the defendant also had to know what it was.

Knowledge of Presence

Possession offenses generally require proof that the defendant knew the item was there. The reason lies in what the offense punishes. A person answers for controlling contraband, and control carries blame only when the person is aware of the thing controlled, since no one can choose to keep what one does not know exists. Kimbrell shows the requirement both in the statute's words and in the argument made under it: the trafficking provision reached a person knowingly in actual or constructive possession of ten or more grams of cocaine, and the defendant's motion for a directed verdict argued that the State had not shown knowing possession.³ The court answered that evidence of actual knowledge of the drug's presence is strong evidence of intent to control, which is how knowledge, taught earlier as a substitute for the intent half of constructive possession, also serves as the proof of the mental state.⁴

A California felon-in-possession case shows the act inquiry and the mental-state inquiry working on a single set of facts. The defendant, while delivering a pizza, was asked to drop a package off, and he carried a paper-wrapped box to a gun shop; he told a detective that he never looked inside and did not know what was in the bag until he reached the shop.⁵ The appellate court held that the trial judge committed reversible error by refusing an instruction telling the jury that a felon who comes into possession of a firearm without knowing it, and later learns of it, violates the statute only by continuing to hold the gun for an unreasonable time without trying to get rid of it.⁶ The court's reasoning ran through both inquiries. The prosecution had to prove a union of act and intent, and because the act the statute proscribes is possession, the court reasoned that possession, actual or constructive, must be intentional, so a felon who comes by a gun through misfortune or accident and has no intent to exercise control has not committed the offense.⁷ The unreasonable-time instruction lines up with the Code's second route to a possessory act, awareness of control for long enough to end it, while the intentional-possession requirement is the mental-state side. The statute asked only for general intent, meaning intent to do the act of possessing and no further purpose.⁸

What the defendant claimed not to know deserves close attention. He knew he was carrying a box, and he denied knowing a gun was inside. Awareness of a container does not amount to awareness of the contraband in it, and the contraband is what the statute punishes. Control of the box may give power over its contents, but the mental half of possession needs awareness of the contents, and that is the awareness he denied. Testimony that the request for the favor never mentioned a gun supported his account, and the court held that the jury should have been allowed to weigh it through the requested instruction.⁹

Because knowledge is a state of mind, it is usually proved from circumstances and rarely by admission, and that invites a tactic: avoid learning what the package holds. Deliberate avoidance, also called willful blindness, closes that route. Under Model Penal Code § 2.02(7), when a statute makes knowledge of a fact an element, the knowledge is established if the person is aware of a high probability that the fact exists, unless the person actually believes that it does not. The rule answers an incentive problem. If only certainty counted, the person best placed to suspect, such as a courier paid to carry a sealed case without questions, would have every reason never to look, and the offense would reach only the possessor who was foolish enough to look. The rule has limits that keep it from swallowing the knowledge requirement. It asks for awareness of a high probability and a purposeful choice not to confirm it, and it does not reach a person who merely should have known, because that is negligence and the statute asks for knowledge.

The delivery case sits closer to the second courier than to the first. A casual request to drop off a package, with no mention of a gun, is the kind of evidence that points toward ignorance, and the prosecution would have needed evidence of suspicion and a purposeful refusal to look before deliberate avoidance could apply. The trap is treating carelessness about what a package held as knowledge, because deliberate avoidance requires awareness of a high probability together with a deliberate choice, and a defendant who never wondered has made no such choice.

Knowledge of the Item's Nature

Knowing that an item is present settles whether the defendant was aware of the thing, but it does not settle whether the defendant had to know what the thing was. The characteristics that make an item unlawful to possess, such as being a controlled substance, a firearm, or a regulated quantity, are a separate subject of knowledge, and the offense-defining statute again supplies the answer. Offenses sort into two groups. In the first, the legislature wrote a knowledge requirement into the offense. In the second, the offense is a public welfare offense, meaning a regulatory crime that polices dangerous or closely controlled items and holds the possessor responsible whether or not the possessor knew the regulatory facts.

When a statute punishes knowing possession of a described item, the knowledge term ordinarily reaches the description, so the prosecution must show that the defendant knew the features that make the item contraband. The trafficking provision in Kimbrell is of this type, since it attached the word knowingly to possession of cocaine.¹² The reason is the work a knowledge term does: it separates the person who chooses to hold contraband from the person who holds the same object innocently, and someone who honestly believes a bottle holds vitamins is as innocent about the pills as someone who never knew the bottle existed.

A public welfare statute works differently, and generally dispenses with knowledge of the regulatory characteristic. The reasoning is again about incentives. The possessor is usually the only person positioned to check an item's size, weight, contents, or license status, and the penalty is typically modest, so the legislature makes the duty to check the price of holding the regulated item. If the prosecution had to prove that the possessor knew the regulatory facts, a possessor could escape by never checking, and the regulation would fail. Even here the possession itself must be intentional, because a statute that dispenses with specific intent still asks for the general intent to do the act of possessing.¹³

Which group a statute belongs to is a question of interpretation. A knowledge term in the text points toward the first group, and silence points toward the second mainly when the offense looks regulatory, with a modest penalty and items dangerous enough that possessors are expected to know the rules. Courts grow more reluctant to read knowledge away when the penalty is severe and the item can be held innocently, because a strict-liability reading would then convict a person who did nothing blameworthy.

One further distinction prevents a common error. Knowledge of the item's nature concerns facts about the thing, not knowledge that the law forbids possessing it. In the California case, the man who owned the gun, who was not the defendant, told the shop owner that he did not know it was illegal to possess a gun without a serial number, which is a claim about the law and not a claim that he did not know the object was a gun.¹⁴ The trap is treating ignorance that possession is forbidden as ignorance of what the item is, because a possessor who knows exactly what the item is generally gets no defense from not knowing that the law prohibits holding it. The next section turns to the limit that keeps the inferences discussed here from becoming guilt by proximity.

Knowledge of Presence

The first mental-state question a possession statute raises is whether the defendant had to know the item was there. Legislatures often answer it in the text. The Gun-Free School Zones Act of 1990 made it a federal offense “knowingly to possess a firearm” in a school zone, as the Court recited in United States v. Lopez.¹⁷ The indictment in Stanley v. Georgia charged the defendant with “knowingly hav[ing] possession of . . . obscene matter” under Georgia law.¹⁸ Mapp v. Ohio involved a conviction for “knowingly having had in her possession and under her control” certain lewd materials.¹⁹ Those decisions were resolved on constitutional grounds that this chapter does not take up. They matter here only because each statute wrote knowledge directly into the possession element.

Many possession statutes say nothing about knowledge, and the question then becomes whether courts will supply it. Most do. They read possession offenses to require that the accused be aware of having the thing, even when the statute is silent and even when the accused need not know that holding the thing is unlawful.²⁰ The standard illustration is a smuggler who slips heroin into an innocent traveler’s luggage, planning to steal the bag after it clears customs, and most courts would refuse to convict the traveler if a border search turns up the drug.²¹ A minority disagrees. In State v. Bradshaw, a commercial truck driver crossed into Washington with a semitrailer on which someone had hidden 77 pounds of marijuana between pallets of cargo. There was no evidence the driver knew of the drugs, and the Washington Supreme Court upheld the conviction anyway, rejecting the argument that awareness of an item is inherent in possessing it.²² On an exam, apply the majority view unless the problem tells you the jurisdiction follows the minority.

The reason most courts supply the requirement lies in what possession offenses are aimed at. They target people who choose to hold prohibited things, and a person can choose to keep or discard only what the person knows about. A traveler with no idea that heroin sits in the suitcase has made no decision a penalty could influence, so a conviction would punish an outcome with no blameworthy choice behind it. The requirement also matches the Model Penal Code’s treatment of the act itself, under which possession counts as an act only if the possessor knowingly procured or received the thing or was aware of control long enough to end it.²³ Both routes presuppose awareness, so a court that reads awareness into the statute’s mental element follows the same logic the Code already uses for the act. The two inquiries still stay separate. The act rule decides whether there was conduct at all, and the statute decides what state of mind that conduct must carry.

Because a state of mind is rarely admitted, knowledge of presence is usually proved from circumstances, and it often does double duty in constructive-possession cases. Constructive possession, taught above, requires the power and the intent to control the item. In Kimbrell, a prosecution for trafficking in cocaine, the statute reached a person knowingly in actual or constructive possession of ten or more grams of the drug, and the defendant argued that the State had not shown knowing possession.²⁴ The court answered that actual knowledge of the drug’s presence is strong evidence of intent to control its disposition or use, so knowledge may be equated with or substituted for the intent element, and that possession may be inferred from circumstances.²⁵ Circumstantial proof can be modest and still reach a jury. In United States v. Stevens, a Third Circuit felon-in-possession case, two officers testified that Stevens made a throwing motion toward the ground immediately before a loaded revolver was recovered from that spot, and the court held that evidence sufficient for a rational jury to find that he knowingly possessed the gun.²⁶

Knowledge of presence also marks the line between a possessor and a person to whom an item has simply happened. A California felon-in-possession case shows the line. The defendant, while delivering a pizza, was asked by a visitor at a customer’s apartment to drop a package off, and he carried a paper-wrapped box to a gun shop. He told a detective that he never looked in the bag and did not know what was in it until he reached the shop, and a witness who overheard the request heard no mention of a gun.²⁷ The court reasoned that the prosecution must prove a union of act and intent, that the act the statute proscribes is possession, and that possession, actual or constructive, must therefore be intentional. A felon who comes by a gun through misfortune or accident, with no intent to exercise control or custody, lacks the wrongful intent the offense requires.²⁸ The statute asked only for general intent, meaning intent to do the act of possessing with no further criminal purpose, and that label did not remove knowledge from the case, because intending to possess something presupposes being aware of it. The defendant plainly knew he was carrying a box, but the contraband was the gun inside, and awareness of that was the point he disputed. The court held it reversible error to refuse his requested instruction.²⁹

A related argument arises in modern settings where the defendant intentionally does something that causes an item to arrive. A defendant charged with possessing child pornography who deliberately searched for and viewed it, and who closed a dialog box without realizing that doing so automatically downloaded the files onto the hard drive, will argue that he never knowingly possessed the files because he did not know they were on the drive.³⁰ Doing an intentional act that leads to the item’s arrival is a different thing from knowing that the item has arrived, and the statute’s knowledge term asks about the second.

Proving what a defendant knew becomes hard when the defendant has arranged not to know. The Model Penal Code answers with a definition of knowledge that reaches deliberate avoidance: under § 2.02(7), when a statute makes knowledge of a fact an element, the knowledge is established if the person is aware of a high probability that the fact exists, unless the person actually believes that it does not. The rule solves an incentive problem. If only certainty counted, the person best placed to suspect that a package holds contraband would have every reason to leave it sealed, and the offense would reach only the possessor careless enough to look. Two limits keep the rule from swallowing the knowledge requirement. It demands awareness of a high probability, which is more than vague unease, and it excuses a person who actually believes the item is absent. It therefore does not reach someone who merely should have known, because that is negligence and the statute asks for knowledge.

The California delivery case belongs with the second version of Arlen. A casual request to drop off a package, with no mention of a gun, is evidence of ignorance, and the prosecution would have needed evidence that the defendant suspected a gun and purposely refused to look before deliberate avoidance could apply.³¹ The trap is treating a failure to check what a package held as knowledge, because deliberate avoidance requires awareness of a high probability together with a purposeful choice, and a defendant who never wondered has made no such choice.

Knowledge of the Item's Nature

Knowledge of presence settles whether the defendant knew the item was there, but a possession statute may ask a second question: whether the defendant also knew the characteristics that make the item unlawful. A person can know exactly what is in a glove compartment and still be unaware of the one feature the statute targets, such as the rate at which a rifle fires or the content of a reel of film. Knowledge of the item's nature means awareness of those characteristics. The cases sort into two groups. In the first, mens rea (the required mental state) as to the item's nature is required, so the prosecution must prove that the defendant knew the characteristic that brings the item within the prohibition. In the second, mens rea as to the item's nature is not required, and the statute asks only that the defendant knowingly possessed the item.³⁵

Legislatures sometimes answer the question in the text. The Georgia obscenity statute reproduced in Stanley v. Georgia reached a person who knowingly had possession of obscene matter and then added a separate condition: the person must have had knowledge, or reasonably should have had knowledge, of the obscene nature of the matter.³⁶ Two drafting choices are visible in that text. Knowledge of possession and knowledge of nature are separate elements, and the legislature set the standard for the second below actual knowledge by adding the reason-to-know alternative. Stanley was decided on First Amendment grounds.³⁷ This chapter does not take up those grounds, so the statute matters here only as a model of how a legislature can write the nature element into the offense.

Most possession statutes say nothing about the item's nature, and the answer then depends on what kind of offense the statute creates. A public welfare offense, meaning a regulation that protects health or safety, generally dispenses with knowledge of the regulatory characteristic.³⁸ The reasoning has two strands. The penalty is usually modest and carries little moral stigma, so convicting a possessor who missed a regulatory detail does not brand a blameless person as a wrongdoer. The possessor is also usually the only person positioned to check the item's size, contents, or status, and if the prosecution had to prove that the possessor knew every regulatory fact, a possessor could escape by never looking and the regulation would fail. Leaving out a knowledge term therefore makes the duty to check the price of holding the regulated item. The Constitution generally tolerates that choice, with a narrow exception for a registration requirement applied to a person who faced no circumstances that would prompt inquiry into a duty to register.³⁹

Courts read the other way when the penalty is heavy or the statute resembles a traditional crime. Severe punishment is hard to justify against a person who had no reason to believe that the conduct was unlawful or even unusual. Silence in such a statute looks more like an omission than a deliberate choice to abandon mens rea, so courts supply the missing mental state. The Ohio statute in Osborne v. Ohio shows the move. As quoted in the opinion, it forbids possessing or viewing material that shows a minor in a state of nudity, subject to exceptions for proper purposes, and the quoted text contains no mental-state term, yet the Ohio Supreme Court found that scienter is an essential element of the offense.⁴⁰

Two federal firearm registration statutes put both outcomes side by side. In Staples v. United States the statute made it a crime to possess an unregistered machinegun, said nothing about mental state, and carried up to ten years' imprisonment, and the defendant could assert that he did not know the weapon was automatic, which means the prosecution had to prove he knew the characteristic that made the weapon a machinegun.⁴¹ A statute punishing a person who knowingly deals in a firearm that is not registered under federal law works the other way, because ignorance of nonregistration is no defense, although the defendant must know that he is dealing with a firearm.⁴² Two features separate the cases. In the second statute the unknown fact is a registration status, which is the kind of detail a regulatory scheme expects the holder of a known firearm to check, and the dangerousness of the object itself signals that regulation is likely. In the machinegun statute the unknown fact is a physical feature that turns an object people commonly and lawfully own into one the statute treats as a machinegun, and a ten-year penalty is hard to impose on someone who may have believed he held an ordinary weapon.

In both groups the knowledge asked about concerns facts about the item. A possessor who knows exactly what the item is gets no defense from not knowing that the law forbids holding it, so the nature requirement never turns into a requirement that the defendant knew the conduct was criminal.⁴³

Students lose this issue when they treat legislative silence as proof that a possession offense is strict liability, because silence points toward dispensing with knowledge only for a regulatory offense with a modest penalty, and a heavy penalty or traditional-crime character pushes courts to read the knowledge requirement in.⁴⁴