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Eighth Circuit Affirms Denial of “Mere Presence” Instruction
Mar 23rd, 2014

In United States v. Vore, issued on March 4, 2014 (published), the Eighth Circuit affirmed the district court’s denial of the defense request for a “mere presence” instruction. This instruction reminds the jury that a defendant’s mere presence near contraband or those engaged in criminal activity is not enough to establish knowledge or control of the item, or knowing participation in the crimes of others. Noting that a defendant is not entitled to a “theory of defense” instruction where the trial court’s other instructions cover the “substance of the requested instruction,” the Eighth Circuit affirmed the refusal to give a specific “mere presence” instruction. The trial court had defined possession to include “constructive possession,” which requires “both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons.” The Eighth Circuit concluded that “[t]he unmistakable implication from this instruction is that something more than mere presence was required in order to convict Vore.”

Some might conclude, alternatively, that the trial court’s instruction was quite a confusing mouthful, and would have done little to dispel any implication that the old adage “where there’s smoke, there’s fire” has no independent validity in the criminal court. The Court’s conclusion here, however, should be a relatively easy hypothesis to test in an online experiment . . .

Note, the same issue arose last month in United States v. Chatmon, issued on February 5, 2014.




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JaneAnne Murray is a criminal defense lawyer in Minneapolis.

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