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What If I Was “Just There” Can They Charge Me? -The Defense of “Mere Presence.” I often get the question – “I was just there – how can they charge me with a crime?” This article addresses the defense of “mere presence” and accomplice or complicity criminal liability.
The law in this area has always been clear – there is no legal duty in witnessing a crime in progress to report that crime or to prevent that crime from occurring.
Even you are in the presence of people who are in the midst of the commission of the crime – assuming you have done nothing to encourage or instigate the crime, you hve done nothing illegal.
There are many defenses that are potentially available in a given criminal case.
Among them are:.
While I have written on the topic of mere presence before – recent Colorado cases have brought the subject to the fore once again.
When one “aids and abets” in the commission of a crime “he associates himself with the undertaking, participates in it as in something he desires to bring about, and seeks by his action to make it succeed.”
As noted above – mere knowledge or physical presence at the scene of a crime does NOT constitute a crime and it will NOT provide a legal basis for a charge based on the aiding and abetting of a crime.
Aiding and abetting essentially means actually … somehow … assisting in the commission of someone else’s crime and the proof of this status requires that a Defendant embrace the commission of the crime of another and then consciously do something to contribute to the success of that crime.
Complicity means a situation where “the evidence … establishes that two or more persons were jointly engaged in the commission of a crime”
A person is liable as a principal for the behavior of another:
” if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense.” § 18-1-603.”
A mere bystander only becomes a complicitor if that person has the culpable mental state required for the underlying crime committed by the principal
…the complicitor must intend that his own conduct promote or facilitate the commission of the crime committed by the principal.
If the accused in a drug crimes case allows another man to rent an apartment and the accused knew that renter distributed controlled substances from that apartment and allowed the renter to use the accused’s apartment for such purposes… there is sufficient evidence to justify a prosecution under a complicity theory.
On the other hand – if a neighbor was aware of the sales of drugs going on in the apartment next door – and does nothing to stop it – including not calling the police – that is NOT a crime in Colorado..as described above.
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The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.
If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.
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You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 30 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – What If I Was “Just There” Can They Charge Me -The Defense of “Mere Presence.”