LAW 535-001 – Criminal Law

Necessity


Necessity is a justification defense when one commits a relatively minor offense to avoid suffering or allowing another to suffer a substantial harm to person or property.

Elements of necessity:

  1. The defendant must be faced with a clear and imminent danger.
  2. The defendant must have a reasonable expectation that his action will be effective in abating the danger he seeks to avoid.
    • There must be a direct causal relationship between his action and the harm to be averted.
  3. There must be no effective legal way to avert the harm.
  4. The harm that the defendant will cause by violating the law must be less serious than the harm he seeks to avoid.
    • The defendant’s actions should be weighed against the harm reasonably foreseeable at the time, rather than the harm that actually occurs.
  5. Lawmakers must not have previously “anticipated the choice of evils” and determined the balance to be struck in a manner which conflicts with the defendant’s choice.
  6. The defendant must come to the situation with “clean hands”. He must not have substantially contributed to the emergency.

Some states limit the defense to emergencies created by natural, non-human forces.

Necessity cannot apply to homicide cases.

Some courts only allow necessity to protect people and property.