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NECESSITY AS A DEFENSE

A necessity may be claimed as a defense when a defendant reasonably believed that his or her criminal act was immediately necessary to avoid imminent harm. The reasonableness of the defendant’s act and the harm that was sought to be avoided by the defendant are the essential elements of the defense. The defendant must show that the harm that he or she sought to avoid was greater than the harm that was committed by his or her criminal act. In other words, the defendant must show that he or she was attempting to achieve a “greater good.”

The defense of necessity is different from the defense of duress. The defense of necessity arises when the forces of nature compel a defendant to commit a criminal act. The defense of duress arises when another person compels the defendant to commit the criminal act. The defense of duress is a more specific affirmative defense than the defense of necessity. The defense of duress also requires a higher burden of proof for the defendant.

A defendant claiming the defense of necessity must prove that he or he reasonably believed that his or her criminal act was immediately necessary to avoid imminent harm. A mere suggestion of the possibility of harm is not sufficient for the defense. Also, if the threat of harm has been avoided or has passed, the defense does not apply.

A defendant claiming the defense of necessity must also prove that the harm that he or she sought to avoid clearly outweighed the harm that was committed by the defendant’s act. This element must be proved according to the standards that an ordinary and a reasonable person would have used under the circumstances. The standards are objective. They are not measured by the defendant’s own moral or ethical standards. The standards are a question of fact for a jury.

The defense of necessity does not apply if the legislature has specifically excluded certain offenses from the defense. Examples of such exclusions include the medical use of marijuana, possession of a weapon in a penal institution, or economic necessity as a justification for the commission of an offense. Whether there is a legislative exclusion is a question of law for the determination of a trial court and not a jury.

In order to assert the defense of necessity, a defendant must admit that he or she committed the offense with which he or she is charged. If the defendant has asserted other defenses and if there is evidence to support those other defenses, the defendant may deny some of the elements of the offense.

Whether a defendant is entitled to a jury instruction on the defense of necessity is a question of law for a trial court. The trial court may determine whether the defendant’s beliefs and standards were reasonable as a matter of law. The defendant may not be entitled to a jury instruction on the defense if he or she provoked the harm, if he or she placed himself or herself in the situation that created the harm, or if his or her own recklessness or negligence created the harm.

Arshad, Pangere & Warring, LLP offers consultations. For an aggressive and effective legal team to advocate on your behalf, call the firm at 219-736-6500 or use the convenient online contact form on this site.

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