2.4 Necessity

Elements of the Necessity Defense

The necessity defense allows a defendant to justify committing a crime by showing it was done to prevent a greater harm. Think of it as the "lesser of two evils" principle: sometimes the law recognizes that breaking a rule is better than the alternative.

To successfully raise this defense, the defendant must establish three things:

• An imminent threat of harm that required immediate action
• No reasonable legal alternative to committing the crime
• The harm avoided was greater than the harm caused by the criminal act

All three elements must be present. If the defendant had time to call the police, or if the crime caused more damage than it prevented, the defense fails.

Necessity vs. Duress

Necessity and duress overlap in some ways, but they differ in important respects.

• Source of the threat: Duress involves a threat from another person (someone holding a gun to your head). Necessity involves a threat from circumstances beyond the defendant's control, like natural disasters or medical emergencies.
• Scope: Duress is a defense to any crime except murder. Necessity can potentially apply to any crime, including murder in some jurisdictions, though this is rare.
• How they work: Duress is typically classified as an excuse defense that negates the defendant's free will. Necessity is a justification defense that argues the criminal act itself was the right thing to do under the circumstances.

Imminence Requirement

For necessity to apply, the threat of harm must be imminent, meaning it is about to happen or is currently happening. This requirement exists to ensure the defendant truly had no opportunity to pursue legal alternatives before resorting to criminal conduct.

Courts analyze imminence in two ways:

Temporal Imminence

Temporal imminence focuses on timing. The harm must be immediate or about to occur, not something speculative or far off in the future. A building currently on fire or a person actively drowning are classic examples of temporally imminent threats.

Situational Imminence

Situational imminence focuses on circumstances. Even if the harm isn't seconds away, it may still qualify as imminent if the defendant's situation made it impossible to seek legal alternatives. For example, being stranded in a remote location with no means of communication could make a future threat effectively imminent because there's no way to get help in time.

Necessity and Intent

The necessity defense applies to both specific intent and general intent crimes, but it operates differently depending on which type is involved.

• Specific intent crimes require proof that the defendant intended both the criminal act and a particular result (e.g., burglary requires intent to commit a felony inside the building). Here, necessity negates the intent element: the defendant argues their purpose was to avoid the greater harm, not to achieve the criminal result.
• General intent crimes require only proof that the defendant intended the criminal act itself, regardless of the result (e.g., trespassing, battery). Here, necessity justifies the act directly. The defendant's intent isn't really at issue; the question is whether the criminal act was necessary to prevent the greater harm.

Limitations on Necessity

The necessity defense has significant boundaries that you need to know.

Homicide and Necessity

In most jurisdictions, necessity cannot be used as a defense to homicide. The reasoning is that human life carries such weight that it can never be outweighed by other harms, even serious ones.

A small number of jurisdictions recognize a "necessity killing" defense in extreme circumstances, such as killing one person to save a greater number. This remains rare and deeply controversial.

Justification vs. Excuse

Necessity is classified as a justification defense. This matters because justification defenses send the message that the defendant's conduct was the right thing to do under the circumstances. Society effectively approves of the action.

This contrasts with excuse defenses (like insanity or duress), which say the defendant shouldn't be held morally culpable but don't endorse the conduct itself. The distinction affects how courts frame the defendant's behavior and can influence how third parties are treated (for example, you can generally assist someone acting under justification, but not someone acting under excuse).

Burden of Proof

Who has to prove what varies somewhat by jurisdiction, but the general framework works like this:

1. The defendant bears the initial burden of production: they must present some evidence supporting each element of the necessity defense. This is a relatively low bar. They don't need to prove the defense by a preponderance of the evidence.
2. If the defendant meets that burden, the defense goes to the jury, and the burden shifts to the prosecution to disprove the necessity defense beyond a reasonable doubt.
3. The prosecution must convince the jury that at least one element of the defense has not been established. If the prosecution fails to do so, the defendant is entitled to an acquittal on necessity grounds.

Legislative Responses to Necessity

Jurisdictions handle the necessity defense in different ways, and knowing your jurisdiction's approach matters.

Codification of Necessity

Some states have written the necessity defense into their criminal codes. New York, Wisconsin, and Texas are examples. These statutes typically spell out the required elements and any specific limitations or exceptions. Codification provides clarity and consistency, though it can also restrict the defense's flexibility in situations the legislature didn't anticipate.

Rejection of Necessity

Other jurisdictions, such as Indiana and Missouri, have explicitly rejected the necessity defense through statute or case law. The rationale is that allowing individuals to break the law based on their own moral judgments undermines legislative authority and the rule of law.

In these jurisdictions, defendants can't argue necessity, but they may still raise related defenses like duress or self-defense if the facts support them.

Policy Considerations

The necessity defense sits at the intersection of individual moral judgment and the authority of the legal system.

Moral Considerations

Supporters of the defense argue it reflects a basic moral principle: individuals should be permitted to break the law when doing so prevents a greater harm. This view respects individual moral autonomy and trusts people to make difficult choices in extreme situations. It also serves as a safety valve, preventing the criminal justice system from producing unjust outcomes in cases the legislature never anticipated.

Deterrence and Necessity

Critics worry the defense undermines deterrence. If people believe they can break the law whenever they personally judge it necessary, criminal prohibitions lose some of their force.

In practice, though, this concern may be overstated. The necessity defense is rarely invoked and even more rarely successful, so its actual impact on deterrence is likely minimal. Some scholars argue the defense actually strengthens respect for the law by demonstrating that the legal system is flexible enough to accommodate genuinely extreme circumstances rather than producing results most people would consider unjust.