CORE CRIMINAL LAW SUBJECTS: Defenses: Innocent Ingestion


United States v. Brewer
, 61 M.J. 425 (the very nature of an innocent ingestion defense in a use-of-drugs case means that an accused cannot prove the time or place of his innocent ingestion, but can only suggest possible explanations; part of an innocent ingestion defense requires raising doubt in the minds of the members that the presence of a drug in an accused’s system came from a knowing and wrongful use of the drug; the testimony of witnesses who were with him and observed his behavior for much of the relevant time frame and saw no evidence of drug use provides grounds for the members to question whether to draw the inference that an accused’s drug use was wrongful, thereby raising a question as to an essential element of the charged offense; the use of a permissive inference of wrongful use by the government requires that a court allow an accused some leeway to rebut that inference by using such testimony; the military judge, of course, retains the power to limit repetitive testimony under MRE 403).

(in a use-of-drugs case, where the military judge precluded testimony from several witnesses who were with the accused and observed his behavior for much of the relevant time frame and saw no evidence of drug use, that ruling denied the accused the opportunity to present a line of defense on the element of wrongful use and violated his due process right to present witnesses in his own defense; few rights are more fundamental than that of an accused to present witnesses in his own defense; thus, the military judge abused his discretion in his ruling).


United States v. Hall, No. 58 MJ 90 (evidence of urinalysis tests, their results, and expert testimony explaining them is sufficient to permit a factfinder to find beyond a reasonable doubt that an accused used contraband drugs; the factfinder may draw a permissible inference of wrongfulness from a circumstantial showing of drug use based on such evidence; this evidence is legally sufficient as long as the defense evidence of innocent ingestion could be reasonably disbelieved by the factfinder; "urinalysis" is not, however, a synonym for "conviction.").


United States v. Lewis, 51 MJ 376 (in proving the knowing use of drugs, the prosecution can rely upon a permissive inference of wrongfulness, including knowledge; and in the face of evidence of innocent ingestion the prosecution must also persuade the factfinder to disbelieve this defense evidence or discount it in deciding to draw the permissible inference of wrongfulness).

(disclosure of the defense of innocent ingestion under RCM 701(b)(2) requires disclosure of witnesses to innocent ingestion, other than the accused, only if an accused intends to call such witnesses and does not otherwise limit the right of the accused to testify in his/her own behalf).

(military judge erroneously held view that RCM 701(b)(2) required presentation of corroborating witnesses in order to establish innocent ingestion defense and, as a result, limited appellant’s ability to convey his version of the facts concerning innocent ingestion, prevented counsel from framing this issue by barring any reference to this defense in his opening statement or closing argument, and failed to give instructions on innocent ingestion as required by case law).

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