Also known as: necessity defence · necessity defenses · necessity defences · defense of necessity · defence of necessity · necessity · justification by necessity
Written by attorneys — see sources below.
A justification defense in criminal law that excuses otherwise criminal conduct when the defendant reasonably believes the conduct is necessary to avoid an imminent harm or evil greater than the harm caused by the offense. The defense is unavailable if the defendant was reckless or negligent in creating the situation or in assessing the need for the conduct.
Nora Nash faced rising floodwaters threatening her home. Unable to reach authorities, she crossed a neighbor's vacant lot to build a sandbag barrier. Charged with trespass, Nora asserted the necessity defense. The court examined whether she reasonably believed the barrier prevented greater harm than the trespass itself.
Noreen Nguyen, after drinking heavily, drove into a remote area and became trapped by rising floodwaters. To escape she broke into a locked cabin for shelter. Charged with burglary, she claimed necessity. Because her intoxication created the emergency, the justification was unavailable under the rule that recklessness in bringing about the situation bars the defense.
Naveen Nanda's child suffered a severe allergic reaction miles from any hospital. He broke into a closed pharmacy to obtain an epinephrine injector. Charged with burglary, Naveen raised the necessity defense. The court weighed whether the life-saving act avoided a greater harm than the property offense.
Norman Nash encountered a washed-out bridge while driving his injured passenger to the hospital. He removed a highway barrier to take an alternate route and was charged with criminal mischief. Norman asserted the necessity defense. The court held the defense protected the act only while the emergency persisted.
Nikhil Narayan was trapped in a burning prison cell with no guards responding. He forced open a door to reach safety and was charged with escape. Nikhil argued necessity required the action to avoid death. The court required proof that no lawful alternative existed under the circumstances.
Nestor Navarro was forced at gunpoint to enter an office and take files. Charged with burglary, he claimed the necessity defense. Because the movement resulted from an immediate threat of death, the justification applied and he was acquitted.
The defense is unavailable when the defendant was reckless or negligent in bringing about the situation requiring the choice of harms. This rule prevents a defendant from manufacturing an emergency and then claiming justification for criminal conduct.
Supporting sources
Yes. The defendant must show a reasonable belief that the harm or evil avoided was greater than the harm sought to be prevented by the criminal statute. Courts compare the relative seriousness of the two harms under the circumstances.
No. If the legislature has specifically ruled out a necessity defense for the circumstances at issue, the defense is unavailable even if the defendant otherwise meets the elements.
…Federal Judiciary Act of 1789 (1923) 37 Harv. L. Rev. 49, 51-52, 81-88, 108. : Shelton, Concurrent Jurisdiction — Its Necessity and its Dangers (1928) 15 Va. L. Rev. 137; Frankfurter, Distribution of Judicial Power Between Federal and State Courts (1928) 13 Corn. L.Q. 499, 524-30; Johnson, State Law and the Federal…