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Encyclopedia > Necessity
Criminal defenses
Part of the common law series
Defenses to crime
Actual innocence
Excuse and exculpation
Defenses that deny the act:
Alibi  · Mistaken identity
Frameup  · Falsified evidence
False confession  · Automatism
Defenses that negate intent:
Infancy  · Entrapment
Insanity  · Mental disorder
M'Naghten Rules
Diminished responsibility
Mistake of law  · Mistake of fact
Intoxication
Defenses that justify the act:
Self defense  · Consent
Duress  · Necessity
Provocation
See also Criminal Law
Criminal Procedure
Other areas of the common law
Contract law  · Tort law  · Property law
Wills and trusts  · Evidence
Portals: Law  · Criminal justice

In criminal law, necessity may be either a possible excuse or an exculpation for breaking the law. Defendants seeking to rely on this defense argue that they should not be held liable for their actions as a crime because their conduct was necessary to prevent some greater harm. For example, a drunk driver might contend that he drove his car to get away from an armed robber. Most common law and civil law jurisdictions recognize this defense, but only under limited circumstances. Generally, the defendant must affirmatively show (i.e., introduce some evidence) that (a) the harm he sought to avoid outweighs the danger of the prohibited conduct he is charged with; (b) he had no reasonable alternative; (c) he ceased to engage in the prohibited conduct as soon as the danger passed; and(d) he did not himself create the danger he sought to avoid. Thus, with the "drunk driver" example cited above, the necessity defense will not be recognized if the defendant drove further than was reasonably necessary to get away from the robber, or if some other reasonable alternative was available to him. This is a disambiguation page — a navigational aid which lists other pages that might otherwise share the same title. ... A modal logic is any logic for handling modalities: concepts like possibility, impossibility, and necessity. ... In philosophy and logic, contingency is the status of facts that are not logically necessary. ... Impossible is also a name of a skateboarding trick. ... Image File history File links Scale_of_justice. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... Actual innocence is the most widely used - yet often the least studied - defense to crime. ... In jurisprudence, an excuse or justification is a form of immunity which must be distinguished from an exculpation. ... Mistaken Identity may refer to albums: Mistaken Identity (Kim Carnes album) Mistaken Identity (Delta Goodrem album) This is a disambiguation page: a list of articles associated with the same title. ... A frameup refers to the act of framing someone, that is, providing false evidence in order to prove someone guilty of a crime. ... Falsified evidence, forged evidence or tainted evidence is used to either convict an innocent person, or to guarantee conviction of a guilty person. ... False Confession was a hardcore punk band in the early 1980s that emerged in the Oxnard, California area. ... Automatism is a disassociative state where the individual suffering from it has no control over their actions. ... The defense of infancy is a form of defense known as an excuse so that defendants falling within the definition of an infant are excluded from criminal liability for their actions, if at the relevant time, they had not reached an age of criminal responsibility. ... In jurisprudence, entrapment is a procedural defense by which a defendant may argue that they should not be held criminally liable for actions which broke the law, because they were induced (or entrapped) by the police to commit said acts. ... In a criminal trial, the insanity defenses are possible defenses by excuse, via which defendants may argue that they should not be held criminally liable for breaking the law, as they were mentally ill at the time of their allegedly criminal actions. ... In criminal law of commonwealth countries, the defense of mental disorder - sometimes called the defence of mental illness - is a legal defence by excuse, by which a defendant may argue that they should not be held criminally liable for breaking the law, as they were at the time of their... The MNaghten Rules are used to establish insanity as an excuse to potential criminal liability, but the definitional criteria establish insanity in the legal and not the psychological sense. ... In criminal law, diminished responsibility (or diminished capacity) is a potential defense by excuse by which defendants argue that although they broke the law, they should not be held criminally liable for doing so, as their mental functions were diminished or impaired. ... Mistake of law is a defense sometimes raised in criminal cases, although rarely with any success. ... Mistake of law and mistake of fact are two types of defense by excuse, via which a defendant may argue that they should not be held criminally liable for breaking the law or liable for damages under a civil law action. ... An intoxication defense, in criminal law, is a defense by excuse, via which a defendant argues that they should not be held criminally liable for actions which broke the law, because they were intoxicated. ... This article and defense of property deal with the legal concept of excused (sometimes termed justified) acts that might otherwise be illegal. ... Categories: | ... Duress (coercion) (as a term of jurisprudence) is a possible defense, via excuse, by which a defendant may argue that they should not be held criminally liable for actions which broke the law. ... For the country-specific law, see provocation in English law. ... Criminal law (also known as penal law) is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses. ... Criminal procedure refers to the legal process for adjudicating claims that someone has violated the criminal law. ... A contract is any promise or set of promises made by one party to another for the breach of which the law provides a remedy. ... In the common law, a tort is a civil wrong for which the law provides a remedy. ... Property law is the area of law that governs the various forms of ownership in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system. ... In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. ... The law of trusts and estates is generally considered the body of law which governs the management of personal affairs and the disposition of property of an individual in anticipation and the event of such persons incapacity or death, also known as the law of successions in civil law. ... The law of evidence governs the use of testimony (e. ... Criminal law (also known as penal law) is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses. ... In jurisprudence, an excuse or justification is a form of immunity which must be distinguished from an exculpation. ... // Balancing scales are symbolic of how law mediates peoples interests For other senses of this word, see Law (disambiguation). ... A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ... In most litigation under the common law adversarial system the defendant, perhaps with the assistance of counsel, may allege or present defenses (or defences) in order to avoid liability, civil or criminal. ... In the most general sense, a liability is anything that is a hinderance, or puts one at a disadvantage. ... Action, as a concept in philosophy, is what humans can do. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... Civil law is the predominant system of law in the world, with its origins in Roman law, and sets out a comprehensive system of rules, usually codified, that are applied and interpreted by judges. ... In law, jurisdiction (from the Latin jus, juris meaning law and dicere meaning to speak) is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area...


Where a criminal defendant asserts necessity as a defense to murder, the analysis can be highly controversial. For example, consider the following two situations involving a police officer causing the death of an individual intentionally: A police officer is a person who works for a police force. ...

  • An officer, having a good-faith reasonable belief that a person is a terrorist about to detonate a bomb in a public place, shoots and kills that person. The officer is correct, and this act saves many innocent lives.
  • An officer, having a good-faith reasonable belief that a person is a terrorist about to detonate a bomb in a public place, shoots and kills that person. Upon investigation, the person turns out to be an entirely innocent individual mistaken for a terrorist.

In the former case, the law may consider this a justifiable homicide and excuse the officer from liability on the ground of necessity. In the latter case, the law may hold that the belief in the necessity of the action, no matter how reasonable, should not be enough to exculpate the culpability attaching for a death caused intentionally if the action does not, in fact, avert a greater harm. In some jurisdictions this is the rule of law. In some jurisdictions however, the defence of mistake of fact can be open to the defendant, provided that the accused acted on reasonable belief. Terrorist redirects here. ... The concept of justifiable homicide in criminal law stands on the dividing line between an excuse and an exculpation. ... Culpability (Blameworthiness) is the state of deserving to be blamed for a crime or offence. ... Mistake of fact is an affirmative defense to a crime where the mistake negates the culpable mental state. ...


The controversy is generated by the fact that both officers honestly believe that the killing is justified as necessary but one is excused from liability because, by chance, the threat is real, and the other is denied the defense because his or her honest belief proves to be wrong. The argument is that there should be no distinction between them based on the wisdom of hindsight. Either they should both be liable or they should both be excused. Some jurisdictions that allow the defense adopt a reasonable belief standard.

Contents

Specific Jurisdictions

England

For the main discussion, see necessity in English law

In English law, the defence of necessity recognises that there may be situations of such an overwhelming urgency, that a person must be allowed to respond by breaking the law. There have been very few cases in which the defence has succeeded but the Crown Prosecution Service tends to exercise a discretion not to prosecute those cases where it believes that the potential defendants have acted reasonably in all the circumstances. For the discussion on general principles and policy, see necessity In English law, the defence of necessity recognises that there may be situations of such an overwhelming urgency, that a person must be allowed to respond by breaking the law. ...


Canada

Canadian criminal law allows for a common law defence of necessity. The leading case for the defence is Perka v. The Queen [1984] 2 S.C.R. 232 in which Dickson J. described the rationale for the defence as a recognition that: Perka v. ...

a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience.

However, it must be "strictly controlled and scrupulously limited." and can only be applied in the strictest of situations where true "involuntariness" is found. Three elements are required for a successful defence :

  1. the accused must be in imminent peril or danger
  2. the accused must have had no reasonable legal alternative to the course of action he or she undertook
  3. the harm inflicted by the accused must be proportional to the harm avoided by the accused

Each element must be proven on an objective standard. The peril or danger must be more than just foreseeable or likely. It must be near and unavoidable.

At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable.

With regard to the second element, if there was a realistic or objectively reasonable legal alternative to breaking the law, then there can be no finding of necessity. Regarding the third element requiring proportionality, the harm avoided must be at least comparable to the harm inflicted.


In R. v. Latimer (2001), the Courts ruled that assisted suicide could not be excused by a defence of necessity. Holding The ten-year minimum sentence in this case did not amount to cruel and unusual punishment under the Canadian Charter of Rights and Freedoms; the fairness of the trial was not compromised by the lateness of the decision on whether the jury could consider the defence of necessity. ...


United States

Model Penal Code

The Model Penal Code of the American Law Institute adopts a belief-based "choice-of-evils" theory of necessity in Section 3.02 - "Justification Generally: Choice of Evils": The Model Penal Code (MPC) is a statutory text which was developed by the American Law Institute (ALI) in 1962. ... The American Law Institute (ALI) was established in 1923 to promote the clarification and simplification of American common law and its adaptation to changing social needs. ...

§ 3.02 (1) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or another is justifiable . . . .

The use of the defense is subject to certain limitations, notably: that the harm to be prevented be greater than that caused (§ 3.02(1)(a)); that it not be excluded by the law (§ 3.02(1)(b)) or a plain legislative purpose (§ 3.02(1)(c)); and that the actor not have recklessly or negligently have created the emergency, where the crime charged requires recklessness or negligence (§ 3.02(2)).


Note that the Model Penal Code is not the law of any state, though many states have adopted some of its rationale or provisions.


New York State

The Penal Law of the State of New York collapses justification and necessity into a single article. Article 35 - "Defense of Justification" comprises sections 35.05 through 35.30 of the Penal Law. The general provision relating to necessity, section 35.05, provides: In jurisprudence, an excuse or justification is a form of immunity which must be distinguished from an exculpation. ...

§ 35.05 Justification; generally. Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when: 1. Such conduct is required or authorized by law or by a judicial decree, or is performed by a public servant in the reasonable exercise of his official powers, duties or functions; or


2. Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense.

Under the "choice-of-evils" theory of section 35.05, it is a question of fact for the criminal jury whether the conduct was justified under the circumstances. See State of New York v. Maher, 79 N.Y.2d 978 (1992). As discussed in State of New York v. Gray, 150 Misc. 2d 852 (N.Y. Co. 1991),the defendant is generally held to a "reasonableness" standard--the question is whether a reasonable person in the defendant's position would have reached the conclusion that the relevant conduct was necessary. It is not necessary that the defendant actually avert a greater harm, just that his or her belief be reasonable. As the court observed:

To apply a strict liability standard in evaluating the other elements of this defense, however, and to find that only those actors who have actually averted a greater harm may avail themselves of the defense, is inconsistent with the law of justification in New York, as well as necessity's basic purpose to promote societal interests.

However, the defendant is subject to strict liability as to which harm is greater. For example, a defendant cannot choose to value property over life. Strict liability is a legal doctrine in tort law that makes a person responsible for the damages caused by their actions regardless of culpability (fault) or mens rea. ...


Similarly, when using physical force in defense of a person, the focus of the defense is not on whether the actor was in fact correct that his or her conduct was necessary to prevent harm, but whether that belief was reasonable. Section 35.15 (1) provides in relevant part:

1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person . . . .

Thus, with respect to the example given above, the actor would, provided his or her belief was reasonable, be entitled to have a defense of justification presented to a jury.


It is important to distinguish between the defense of justification/necessity under Article 35 and the law of citizen's arrest. In general, to use physical force a private citizen must in fact be correct that a person has committed an offence, while a police officer must only have a reasonable belief. A citizens arrest is an arrest performed by a person acting as a civilian, as opposed to a sworn law enforcement officer. ...


  Results from FactBites:
 
Necessity - Wikipedia, the free encyclopedia (423 words)
In criminal law, necessity is a possible excuse for breaking the law.
Defendants who use this defense are arguing that they should not be held liable for a crime, since the actions taken were, for some reason or other, "necessary".
Other courts have ruled, in cases where the eaten individual had died of "natural causes" and starvation was an issue, that cannibalism was acceptable.
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