Legal Definitions - presence

In legal contexts, the term "presence" can refer to several distinct situations:

• Presence (General)

  This refers to the state of being physically located in a particular place at a specific time, or being in close physical proximity to someone with an awareness of their actions.

  • Example 1: A company's board meeting requires the physical presence of at least half its members to constitute a quorum for voting on important decisions.

    Explanation: This illustrates the requirement for individuals to be physically in the meeting room at the time of the vote for the meeting to be valid.

  • Example 2: During a deposition, a witness's attorney must be in their client's presence, meaning close enough to hear all questions and answers and offer immediate legal advice if necessary.

    Explanation: Here, "presence" signifies not just being in the same building, but being in close physical proximity and aware of the proceedings to effectively represent the client.

• Constructive Presence (Criminal Law)

  In criminal law, "constructive presence" means that even if someone was not physically at the exact location where a crime occurred, the law considers them present if they were close enough to the scene to actively assist, encourage, or facilitate the crime's commission.

  • Example 1: A person drives a getaway car and waits a block away from a bank while their accomplice robs it. Although not inside the bank, the driver's role and proximity mean they are considered to be in constructive presence of the robbery.

    Explanation: The driver's location and intent to aid the crime, even from a short distance, legally impute their presence at the scene.

  • Example 2: During a street fight, an individual stands on the sidewalk shouting encouragement and blocking potential escape routes for the victim, while their friend physically assaults someone in the street. The individual on the sidewalk could be found in constructive presence of the assault.

    Explanation: Despite not directly participating in the physical assault, their close proximity and actions to facilitate the crime make them legally present.

• Constructive Presence (Wills & Estates)

  In the context of wills, "constructive presence" refers to a situation where a witness to a will is not in the same room as the person making the will (the "testator") when it is signed, but is in a location where they can clearly see the testator sign the document. This allows the will to be validly witnessed.

  • Example 1: An elderly person signs their will in their living room, and the two required witnesses are standing just outside the large patio doors, clearly observing the signing through the glass. This would likely be considered constructive presence.

    Explanation: Even though the witnesses were not in the same physical room, their ability to directly observe the signing of the will from a nearby vantage point satisfies the legal requirement for presence.

  • Example 2: A testator signs their will in a hospital room, and the witnesses are in the hallway directly outside the open door, able to see the testator's hand signing the document without obstruction. This scenario could also qualify as constructive presence.

    Explanation: The open doorway allows for direct visual observation, fulfilling the legal standard for the witnesses to be considered present during the signing.