Federal courts have expressly ruled that “mere presence at the scene of the crime or mere presence in the area of where an offense is being committed or mere association with the person or persons who are violating the law is not in and of itself sufficient to support a conviction of a conspiracy or a violation of the statutes.”

At the state court level, the law is similar. Many state laws call for courts to instruct juries that the mere presence of the accused at the scene of the crimes, and “guilty knowledge” that those crimes were being committed, is insufficient to prove that the accused aided and abetted those crimes.

In Florida, a “mere presence” jury instruction may be given in certain circumstances as a special jury instruction, when the accused person requests it and the court deems it appropriate. Florida’s standard jury instructions regarding principal actors, and aiding and abetting crimes, state that a person is guilty if he or she: “had a conscious intent that the criminal act be done,” and also “did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually commit or attempt to commit the crime.”

Florida’s law is generally viewed as prosecution-friendly. However, that does not mean that experienced criminal defense attorney’s cannot aggressively fight charges based only on presence.

Even in spite of the absence of the existence of a “mere presence” jury instruction as part of the state’s standard jury instructions, and the state’s broad application of principal theory in criminal cases, Florida law is clear that mere presence is not enough evidence to, by itself, support a conviction.

For example, in 2012, a Florida appeals court re-affirmed this standard by overturning the conviction of a woman who had stood trial for conspiracy to traffic in oxycodone. At trial, it was revealed that police officers observing an illicit oxycodone transaction between a man on the street and the driver of a black car. The woman was later identified as a passenger in the back seat of the black car. The appeals court reversed the conviction, concluding that Florida law requires some evidence of meetings, conversations, or pre-arrangements between the accused and the other alleged conspirators “from which the jury could infer the existence of an agreement.” Since the evidence in the woman’s case was devoid of such meetings, conversations or agreements, there was not enough evidence to convict.

Another case reached the same conclusion. The court, in overturning a man’s conviction for burglary and grand theft, stated that “[e]ven when coupled with knowledge that a crime is about to be committed, an accused’s mere presence at the scene does not eliminate a reasonable hypothesis that someone other than the accused committed the crime… Mere knowledge that an offense is being committed is not the same as participation with criminal intent.”

The bottom line for is this: the law requires that the state offer something more than the accused’s presence at the scene of a crime to convict that person. If you’ve been accused of a crime when you were, in actuality, only guilty of being in the wrong place at the wrong time, consult criminal attorney James Davis right away, to help you defend your rights.