Running head: DEFENSE OF NECESSITY
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Defense of Necessity
Student
Title of the Course
DEFENSE OF NECESSITY
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The Defense of Necessity
The premise of committing a crime is breaking the law as it is written or decided by a
court. But, common knowledge tells us that there are always exceptions. For instance, there is a
scenario often used in law schools about a park in which the city ordinances prohibit any
motorized vehicles from entering. A person sitting on a bench in the middle of the park clutches
his chest and passers by suspect he is having a heart attack. Can an ambulance then enter the
park to attend to the man? Of course, because it is an exception and it is necessary to possibly
save a life.
In criminal court, there are a great number of possible defenses, depending on the crime
or crimes charged and the circumstances. Some possible defenses are:
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Mistaken identity
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Alibi
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Consent, as in sexual crimes, car theft, etc.
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Factual inconsistencies
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Lack of evidence
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Inaccurate forensic testing
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Self defense
It is a “given” that people cannot kill another, but it is clear that they may do so if there are
exceptional circumstances, such as being threatened with deadly force, or believe that they are in
imminent danger. The defense of necessity is one in which exceptional circumstances mean
there would be greater harm to comply with the law, than to go against the law.
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The park example previously mentioned would be an example of the defense of necessity. It
would do greater harm to let a man possibly die, than to drive into a park and provide medical
care. The defense of necessity can apply from a minor crime to homicide. This defense does not
imply that the person does not have a choice, but rather the choice made is necessary, even if it is
against the law.
The defense of necessity is not without limits, of course. It must be the least harmful choice
and if there is “another way out” the person must take it. As an example, a person is threatened
verbally while in a parking lot of a grocery store. He has the opportunity to get in his car and
drive away, but chooses to engage the perpetrator and ends up beating him quite badly.
Although the “innocent” person was threatened, he did not take the alternative of going away.
This would not hold up as a defense of necessity.
The Model Penal Code, which is often the basis for fashioning state laws in criminal matters,
describes the necessity defense as follows:
(1) Conduct which the actor believes to be necessary to avoid an evil to himself or another is
justifiable, provided that: (a ) the evil sought to be avoided by such conduct is greater than that
sought to be prevented by the law defining the offense charged; and (b ) neither the Code nor
other law defining the offense provides exceptions or defenses dealing with the specific situation
involved; and (c ) a legislative purpose to exclude the justification claimed does not otherwise
plainly appear. (2) When the actor was reckless or negligent in bringing about the situation
requiring a choice of evils or in appraising the necessity for his conduct, the justification
afforded by this section is unavailable in a prosecution for any offense for which recklessness or
negligence, as the case may be, suffices to establish culpability. (§3.02)
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In North Carolina, the Supreme Court ruled in STATE v. HASKINS , NO. COA02-1225, 16
September, 2003, that a bail bondsman could not rely on the defense of necessity when he
carried a gun illegally unto the property of a school while hunting a fugitive. The Court reasoned
that he could have taken one or more alternatives, such as notified the school administration,
called the police, or simply leaving the gun in a locked vehicle and entering the school building.
Another North Carolina case granted the defendant a new trial because the jury was not
allowed to hear about a possible defense of necessity. In State of North Carolina v Hudgins, NO.
COA03-1485 (2005) the defendant claimed that although he was seen in a truck that had just
been in an accident, he was not the driver of the vehicle at the time. The actual driver, according
to the defense, lost control of the car and the defendant was forced to steer the vehicle from the
passenger side. He claimed, of course, this was a necessity in order to get the vehicle off the
road and with as little destruction as possible. Since the trial judge would not allow the jury to
consider necessity as a defense, he was given a new trial.
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References
American Law Institute. (1980) Model Penal Code and Commentaries: Official Draft and
Revised Comments. Philadelphia: ALI.
Dressler, J. (1995) Understanding Criminal Law. 2d ed. New York: Matthew Bender/Irwin.
Parry, J. "The Virtue of Necessity: Reshaping Culpability and the Rule of Law." Houston Law
Review 36, no. 2 (Summer 1999): 397–469.