Mere Presence: Were you “just there?”

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By: Mark Issa

July 11, 2013

Mere Presence: Were you “just there?”

Mere Presence


Okay, this one does not really have a statute that goes with it but this is an issue that comes up frequently in criminal cases in Georgia. It is implicated every time a defendant says “but I was just there” and this warrants closer examination.


“Mere presence” deals with a person’s participation in or relation to a crime. In order to be convicted of (most) crimes, you have to have intended to commit it. O.C.G.A. § 16-2-6. It is not enough for the State to prove that you were there when a crime was committed. See, for example, Reid v. State, 212 Ga.App. 787 (1994). Heck, it’s not even enough for the State to prove that you wanted it to happen. See Gresham v. State, 298 Ga.App. 136 (2009). So, you cannot be convicted of a crime just because you were there when it was committed.


Sounds pretty good right? Sounds like all of those “I was just there!!” defenses should work doesn’t it?Not so fast!


The State, and the courts, will look for any other evidence they can to show more than mere presence and approval. And they will often find it. This is because judges and prosecutors seem to treat the phrase “innocent until proven guilty” merely as a convenient philosophical nicety during campaign season and public appearances.


Remember the post on Party to a Crime? This principle often comes into play heavily in mere presence cases. If you recall, a person can be convicted of actually have committed a crime (even though they did not actually commit it themselves) if they did basically anything to help with it or encourage it. And that’s the hook.

In a mere presence case, the prosecutor often has no evidence as to who actually committed any given crime. So what do they do? Cut everybody loose? NO! They charge everybody there with having committed the crime on the theory that everyone there was a party to the crime.


This then allows the State to attempt to prove any given defendant’s guilt by what is called circumstantial evidence (this will be discussed more thoroughly in a later post). Circumstantial evidence is basically evidence that does not directly show that someone committed a crime, but shows that it islikely they did.


So what does this mean for mere presence? Well, it means that the State can and will attempt to prove a defendant who was merely at the scene of a crime was involved by that defendant’s “presence, companionship, and conduct before, during and after the offense.” In the Inerest of J.S., 269 Ga.App. 144 (2009). Sounds a great deal like guilt by association doesn’t it? Or guilt based on strange conduct?


This is a complicated area of the law to be sure. And it is always EXTREMELY fact specific. There are far more ins and outs to this sort of thing than are really practical to discuss in this post. However, it is important that a defendant understand that they will not necessarily escape punishment from the justice system based on the assertion (or fact) that “I was just there.”

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