Concept

Applying the Analysis

Necessity (choice of evils)

Applying the Analysis

The requirements taught in the preceding sections work as a sequence, and a strong answer moves through them in order and stops at the step where the claim breaks. The sequence opens outside § 3.02. When a specific justification written for the situation covers the facts, its own requirements govern, and the general choice-of-evils defense serves as the fallback for emergencies the specific provisions do not reach. If no specific justification fits, the analysis turns to § 3.02(1), which makes conduct justifiable when the actor believes it necessary to avoid a harm or evil to the actor or to another and the harm avoided is greater than the harm the law defining the offense seeks to prevent. Two further conditions complete the subsection: neither the Code nor other law defining the offense may provide exceptions or defenses for the specific situation, and no legislative purpose to exclude the justification may otherwise plainly appear.¹ Subsection (2) then adds a last filter, which removes the justification when the actor's recklessness or negligence created the emergency or misjudged the necessity and that fault suffices to establish the offense charged.²

Exam Analysis Steps

Because each requirement answers a different objection to the claim, the sequence is best run as a list of questions, each answered from the facts before the next is asked. The steps are these:

Ask whether a specific justification written for the situation covers the facts, and if one does, apply its requirements in place of the general defense.
Ask whether the actor actually believed the conduct necessary to avoid a harm or evil to the actor or to another, since necessity that exists without the actor's awareness does not count.
Ask whether the facts show a real emergency, meaning a clear and imminent danger, conduct that can reasonably be expected to avoid or reduce the harm, and no lawful or less harmful alternative.
Ask whether the harm avoided was in fact greater than the harm the offense charged seeks to prevent, remembering that an equal harm will not do and that the court, not the actor, decides the balance.
Ask whether the Code or other law defining the offense provides an exception or defense for the specific situation, or whether a legislative purpose to exclude the justification otherwise plainly appears.
Ask whether the actor was reckless or negligent in bringing about the emergency or in appraising the necessity for the conduct.
If the actor was, compare that fault with the culpability the charged offense requires, and treat the justification as unavailable only for an offense that recklessness or negligence, as the case may be, suffices to establish.

The order follows what each step guards against. The belief step ties the defense to the purpose the actor actually had, which is why a druggist who sells a drug without a prescription, unaware that the buyer needs it at once to survive, cannot rely on a necessity that existed unnoticed.³ The emergency step shows that the choice was forced rather than convenient, and the greater-harm step ensures that breaking the law produced a net gain. The displacement step respects the fact that a legislature acting within constitutional limits is always free to make the value choice itself and have its choice prevail.⁴ The fault bar comes last for two reasons. It can only subtract from a defense that otherwise stands, and it cannot be run until the charge, and therefore the culpability that charge requires, is known.

The Code's standard illustration of a clean success is a mountaineer roped to a companion who has fallen over a precipice. He holds on as long as he can and eventually cuts the rope, hastening one death slightly in order to avoid the only alternative, the certain death of both.⁵ The facts clear every step. No specific justification is written for this predicament, since the companion is not attacking anyone. The mountaineer believes the cut necessary, which his holding on until he could do no more confirms. The danger is immediate, the cut is the one act that saves anyone, and no lawful alternative remains once holding on is exhausted.

The balance and the two legislative steps then fall the same way. The harm avoided is the loss of both lives, which outweighs the one death the law of homicide targets, so the cut produces a net saving of life.⁶ Nothing in the law of homicide addresses rope-cutting, so neither displacement clause applies. He did not carelessly create the peril, so the fault bar never comes into play. Even a mountaineer who had negligently caused the fall would lose the defense only against a charge that negligence suffices to establish, such as negligent homicide, and would keep it against a charge of purposeful killing.⁷

The failure teaches two points that carry to other problems. The defendant's sincerity settles only the belief step, because the balance is decided at trial and not by the defendant's private judgment. A defendant who genuinely values his own financial security above another person's life is not justified, since the clause asks whether the harm avoided is greater and not whether the defendant thinks it is.⁸ The second point concerns how to write the answer. A conclusion that necessity fails is incomplete, and the better answer will name the step at which the claim breaks and give the reason, here the open lawful alternatives and the failed comparison of harms. Once an earlier requirement fails, the later steps need not be run, although a short note on a close later step costs little.

The sequence identifies what the defense turns on, and it does not say which side must carry those questions. Whether the defendant must establish the justification or the prosecution must disprove it once it is raised, and by what standard, is a matter of state law, so an answer should flag the point instead of assuming an allocation.

Applying the Analysis

Endnotes9