third third Flashcards
Necissity common law
choice of evils
The actor must be faced with a choice of evils or harms and he must choose to commit the lesser of the evils
Reasonable Belief: necessity
- The harm that D seeks to prevent must be greater than the harm he reasonably expects to cause
- Balancing of harm is conduct by the judge or jury; D’s belief that he is acting properly is not sufficient.
• In determining whether D chose the lesser of two evils
a reasonable person in D’s shoes, at the moment of decision, would have believed was the better choice.
o The after-the-fact unforeseeable reality is not relevant.
→ Don’t need proof that greater harm is averted, only that it
is REASONABLE that greater harm will be averted.
CL D justified in violating law if:
(1) Necessary (no adequate alternative)
(2) Immediate and clear harm averted (Dire)
(3) Significant harm averted [D believes he can abate harm. Harm must be significant]
(4) No effective legal way to avert harm [no purposeful killing of another]
(5) Reasonable belief that factual conditions for defense exist
[(6) Correct value judgment that harm believed to be averted is greater than that believed to be caused by conduct]
(7) W/o Fault- Not to blame for creating need for act
***Possible to not meet elements, as long as you reasonably believe that act is necessary and averted harm is greater, immediate, and significant.
MPC – §3.02 “CHOICE OF EVILS” JUSTIFICATION
a) The actor believes that the conduct is necessary to avoid harm to himself/another;
(b) The harm sought to be avoided is greater than the harm of the offense
(c) A statute does not say you can’t (legislative intent to exclude the justification)
If the actor was reckless or negligent in bringing about the emergency, the defense is unavailable
• Recklessness or negligence prove the actors guilt
Unlike CL, MPC does not say reasonably believed
If you made a mistake or brought about the situation yourself then the defense has limited application, but is not a complete bar.
Elements/Requirements of the defense: Necessity
- “Clear and imminent danger/harm” – actor must be seeking to avoid imminent harm, i.e., harm that appears likely to occur immediately.
a. This rule is strictly enforced: if there is sufficient time to seek a lawful avenue, the actor must take that. - Casual element—the actor must reasonably believe that his actions will abate the threatened harm
- Reasonable belief that the harm to be caused is less serious than the harm he seeks to avoid
- Actor is blameless—some jurisdictions require actor is not at fault in creating the necessity
Limitations to CL Necissity
- Unclear but probably NOT a defense to homicide
- Must be a situation created by nature forces (not due to actor’s fault or negligence)
- Only for protection of person/property
§3.02(1) → Compare specific harm avoided to abstract harm that would come from intended actions [up to finder of fact]
• Allowed if D actually BELIEVE preventing greater harm
o Must be right about which is greater harm
o Can be reasonably mistaken about certain facts
o Ex: how big lifeboat is or if the town will burn
§3.02(1)(b)+(c): Defense unavailable where specific situation has been addressed by code or legislature
§ 3.02 Limitations to Necessity
- Actor must believe conduct necessary to avoid evil.
- Nec. must arise from attempt by avoid greater harm/evil- equal or lesser harm≠ necessity.
- Balance of evils- determined by jury. (Even if genuine believe $> others life. Question for jury.
- No defense if issue of competing values already decided
§3.02(2) D does not automatically lose benefit of defense if he was at fault in creating the necessitous situation.
Ex: Reckless or negligent in belief that conditions are present → liable for acts w/ recklessness or negligence as culp but DEFENSE for crimes of P/K
• Ex: Statute says reckless; you drive recklessly and get run out of the road → not allowed to use defense b/c situation brought about in reckless manner
• “as the case may” = if you are negligent then you are charged with negligence but if you are reckless then you are both reckless and negligent
Nelson v. State—
— D convicted of reckless destruction of personal property and joyriding. D’s truck got stuck in a marshy area off of the highway in the middle of the night and he was afraid it would tip over. He took 2 vehicles from the Highway Dept. w/out permission. He damaged them trying to free his truck. He had no success and just went to sleep until he was found. Held: The defense of necessity may be raised if D’s actions (though unlawful) were necessary to prevent an even greater harm from occurring.
Three essential elements: of necessitt
) the act charged must have been done to prevent a significant evil;
2) there must have been no adequate alternative;
3) the harm caused must not have been disproportionate to the harm avoided.
D is correct that defense is available if person acted in reasonable belief that emergency existed and there were no alternatives even if that belief was mistaken. There is no reasonable belief that this was an emergency here—D had alternatives and he knew it.
The Queen v. Dudley and Stevens
3 men and a 17 year old youth were stranded on a lifeboat. After about 3 weeks (during most of which time they were without food or water) 2 of the men killed the youth, who was very sick, so that the survivors could eat his remains in order to survive. The two men who participated in the killing were prosecuted for murder. The court rejected their necessity claim. Court said, “it is not suggested that in this particular case the deeds were ‘devilish,’ but it is quite plain that such a principle, once admitted, might be made the legal cloak for unbridled passion and atrocious crime.” Public policy~ people might use this defense in the future to hide behind when they have in fact committed an atrocious crime.
Argument for Partial Defense Even If No Belief
- Persons, who try to do wrong, but do not, shouldn’t be punished as much as those who actually do wrong. (Attempts punished less than completed offenses).
- Those who engage in prohibited conduct but, unbeknownst to them are justified, have tried to do wrong, but have not.
Therefore, they should be punished less
MPC necessity is a defense to murder..
but only when need for killing is to prevent greater harm (can’t have equal alive and dead) → Cannot take 1 life to save another 1 life.
Necessity no defense to murder [Dudley and Stephens]
“Double effect”
some cases of causing the death of one to save another is acceptable; you can’t act with the intent or purpose of taking an innocent life but you can act in a way that will result in that effect so long as it is not your purpose
• Goal is to kill (murder) vs. Death is known side effect (involuntary) = same result but can’t have purpose of killing innocent.
• Distinguishes between purpose and knowledge
• Ex: dropping bombs in town to destroy factory vs. trying to destroy people
Interpretations: Never justifiable at CL to
kill an innocent person een to save a greater number of lives
Conjoined Twin Case and Roman Catholic “double effect”
- One should not cause effects that are directly evil even if they are thought to be a necessary means to a greater good
- if the purpose is to do something permissible or good, even if the effect is death→ the death is permitted, not intended, and is not itself a means to save someone, but rather an unintended side-effect.
- This explains the conjoined twin case—the intent was to save Jodie (not kill Mary). Mary’s death was a side-effect
Where killing of innocent is reasonably believed necessary to save more than one life:
- Murder (traditional CL)
- Murder only is sufficiently possible that privilege will be abused (CL-policy argument)
- Murder only if killing is part of plan/purposeful (CL-conjoined twins)
Neciessity limitations in some states
- Situations created by natural forces [ex: tornado]
- Does NOT apply to homicide cases
- Only for protection of persons and property
- If at fault for bringing about situation, NO defense.
Excuse Defenses (SEE NEXT PAGE)
• Admit that act may be wrong, but excuses actor b/c conditions suggest that actor is not responsible for act
• Negates moral blameworthiness of actor for causing harm
• Human force (opposed to necessity defense: natural force)
General defense; applicable to all offenses even though elements of offense are satisfied
VIEW 2 “Majority view”:
DURESS
- No fair opportunity to comply with law (no free choice)
- It would be hypocritical to send you to jail; we would have done the same in your shoes.
- Retributivists: It was wrong but the actor is not responsible for his action
- Utilitarians: It was wrong, but punishment will not do any good (no deterrence