Attack a prosecution theory based on constructive possession at trial.
The prosecution theory based on constructive possession is a prime target for a criminal defense attorney. Constructive possession means that the prosecution will argue that the drug , narcotic, gun or firearm in question was found in a person’s area of “immediate control” rather than on their person. In these situations it’s important that your criminal defense lawyer focus on other people in the area and who actually owned the property in question. In addition, your attorney also wants point out other persons who also had access to the property.
All of these issues can create reasonable doubt in the eyes of a judge or jury which can result in an acquittal (not guilty). Actual possession is when the defendant has manual or physical possession of the item; constructive possession is when the defendant does not have manual possession but is aware of the substance.
Constructive possession requires that the prosecution show that (1) the individual had the power to exercise control over the item and (2) the individual had the intent to do so. While the mere presence of an item in the area where an individual is arrested is not sufficient, the prosecution can use other factors which could lead to a conviction. For example, items found in an individual’s trunk can be problematic for a defense attorney if the car is registered to the individual or the prosecution can show that the individual was the exclusive user of it.
The same rule would apply to college dorm rooms, bedrooms, or living areas. Good evidence for the defense would be equal or joint access or control to the areas in question. Joint access is however a double edged sword as the prosecution can bring charges against both persons. There are many cases where roommates or occupants of a car are charged with the same crimes or conspiracy related to the same illegal item. While again, the mere presence of an illegal item isn’t enough to convict a person, your attorney must make that argument and persuade a judge or jury. Circumstantial evidence (i.e. keys to the apartment, clothing in the closet, personal items) can all assist the prosecution when access to the illegal item is in question.
A constructive possession analysis requires that a Court exam the totality of the circumstances surrounding the arrest. A Court may convict a defendant for illegal possession under a constructive possession theory where it appears, under the totality of the circumstances, the person exercised conscious dominion and control over it. A Court may also convict a defendant where the prosecution can demonstrate that a defendant intended to exercise control over the item.