Necessity

Question 1

What is the necessity defense?

Answer 1

Necessity provides a defense when the defendant reasonably believes that their criminal conduct was necessary to avoid an imminent harm to society greater than the harm caused by the criminal conduct.

Question 2

What are the common law elements of necessity?

Answer 2

There must be (1) a threat of imminent harm (2) directed toward either a person or property, the defendant must (3) have no reasonable, legal alternative to avoiding the threat and (4) cannot assert the necessity defense if they were at fault in creating the threat. (5) The harm the defendant seeks to avoid must be greater than the harm caused by the defendant.

Question 3

How is reasonable belief measured in necessity and duress?

Answer 3

The defendant’s subjective belief does not control; it is measured by an objective standard. The belief must be objectively reasonable.

Question 4

What must a defendant do if there is a reasonable alternative?

Answer 4

If there is any other reasonable alternative course of action, the defendant must take that alternative. Necessity cannot be used as a defense if another reasonable alternative exists.

Question 5

Is necessity a defense to homicide?

Answer 5

Common law jurisdictions hold that necessity is not a defense to homicide.

Question 6

What is the requirement of natural pressure for necessity?

Answer 6

In common law jurisdictions, necessity only applies when the harm to be avoided is a natural phenomenon rather than a human threat.