Washington v. Sundberg (Majority)
Annotate this CaseCory Sundberg was charged with and convicted of unlawful possession of a controlled substance (methamphetamine). The statute under which Sundberg was convicted set forth a strict liability crime in that knowledge of the possession was not an element of the offense that the State had to prove. To reduce the harshness of this offense, courts have created an "unwitting possession" defense and placed the burden on the defendant to establish the defense by a preponderance of the evidence. At trial, the thrust of Sundberg's argument was to assert an unwitting possession defense, assuming this burden of proof. He was convicted, and the issue his appeal presented for the Supreme Court's review was whether a prosecutor commits error when, during closing rebuttal argument, he comments that the defendant failed to call a witness to corroborate his affirmative defense of unwitting possession of a controlled substance. The Supreme Court held that in a criminal prosecution where the defendant has the burden to establish an affirmative defense, no error occurs where the prosecutor comments on the defendant's failure to present evidence or testimony in support of the defense. Finding no reversible error in the trial court's judgment, the Supreme Court reversed the Court of Appeals.
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