What is the Mere Presence Defense in Arizona?

Though few know it, the mere presence defense is used by defense attorneys quite infrequently. Prosecutors tend to ignore this unique defense strategy, largely because it is rarely used. However, the presence defense has legitimate merit as a legal defense strategy. Let’s take a look at why the mere presence defense is worth considering for those accused of a crime in Arizona.

A Look at the Mere Presence Defense
Consider a situation in which a car is stopped on the road for a supposed traffic violation. The individuals within the vehicle provide consent to be searched. The trunk is closed at the time of the stop. Neither of the vehicle occupants has a key for the trunk has its lock has been changed. However, several hundred pounds of drugs are found within the trunk after it is forcefully opened.

The vehicle occupants are Mirandized. One of these individuals claims the drugs. The other vehicle occupant insists he did not know the drugs were in the vehicle. An indictment is subsequently obtained by the prosecutor during the grand jury proceeding. However, the prosecutor does not instruct the grand jury about the possible application of the mere presence defense.

The mere presence defense is centered on the inability to establish guilt by the defendant merely being present at the scene of the crime, mere knowledge that a crime is committed or mere association with an individual present at the scene of the crime. The bottom line is the defendant’s mere presence or knowledge of a crime does not make that individual guilty of the charged crime. An individual who is merely present is a passive observer who lacks criminal intent and does not actively participate in the supposed crime.

The Viability of the Mere Presence Defense

Though the prosecution does not instruct grand juries about the potential use of the mere presence defense, this defense can be used under Arizona law. The question is whether the mere presence defense is viable. In short, jurors are that much more likely to be swayed by a defense strategy if it is one they can relate to.

The moral of this story is it is wrong, immoral and illegal for someone to be punished for merely being in the presence of another person when a crime is committed, especially when the individual who was merely present had no knowledge of the illegal activity. There is no reason for someone who is innocent to be held legally liable for another party’s failure to tell them that they were doing something illegal. However, this defense is surprisingly underutilized in spite of the fact that it has a good chance of proving successful.

When the Mere Presence Defense Doesn’t Work

The mere presence defense is not infallible in the context of the law. There is the potential for instances to arise when significant facts or even a single fact prevents the mere presence defense from proving successful. As an example, if the fingerprints of the supposedly innocent vehicle occupant from the example detailed above are on the drugs’ packaging, the defense might not prove tenable.

Furthermore, if there is a text message sent by that individual that shows he was aware of the illegality, the mere presence defense will not prove helpful. Therefore, if a comprehensive investigation does not result in a single factor that is meaningfully inconsistent with the legal defense of mere presence, this legal strategy should be considered. Every Arizona criminal defense attorney with merit will recognize the considerable upside of this unique legal defense strategy.