Also known as: necessity defense · necessity defence · necessity
Written by attorneys · grounded in primary & secondary sources — see below
A justification defense that excuses otherwise criminal conduct when natural forces create an emergency requiring the defendant to choose between two evils. The defense applies only when the harm the defendant seeks to avoid exceeds the harm caused by the violation and no noncriminal alternative exists.
Dylan Duffy borrowed funds from Duarte Shipping to purchase equipment. When a sudden flood destroyed his warehouse and threatened lives, Dylan broke into an empty cabin to shelter stranded workers. The court examined whether necessity justified the trespass despite the changed circumstances.
Danielle Dixon drove recklessly into a storm and then claimed necessity to justify trespassing on private land to reach safety. Because her own negligence created the situation, the justification was unavailable for the resulting criminal charges.
Damian Decker became trapped by a landslide that blocked the only road out of his remote cabin. He crossed neighboring land to reach safety and later asserted necessity as a defense to trespass charges. The court weighed whether the emergency justified the entry.
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Doris Duffy was stranded after an earthquake destroyed the sole bridge to town. She drove across Desert Oil's private road to obtain emergency supplies and faced criminal charges. Once the public bridge reopened, any ongoing justification ended.
Dolores Diaz became lost in a blizzard and broke into an unoccupied ranger station to survive. Charged with criminal trespass, she raised necessity. The court required a strong showing that the emergency left no lawful alternative.
Dwight Dorsey's car skidded on black ice toward a cliff. He swerved onto private property, damaging a fence, to avoid going over the edge. The court considered whether the natural emergency supported a necessity defense to the property crime.
The defendant must demonstrate that natural forces created an emergency, that the harm avoided exceeded the harm caused by the criminal act, that no noncriminal alternative existed, and that the defendant acted with the intention of avoiding the greater harm.
No. When the actor was reckless or negligent in bringing about the situation, the justification is unavailable for any offense for which recklessness or negligence suffices to establish culpability.
Necessity arises from pressure exerted by natural physical forces rather than from human coercion. Duress involves a threat from another person that a person of reasonable firmness could not resist.
…Of the power of Congress to condemn whatever land may be necessary for such canal, there can be no question; and of the equal necessity of paying full compensation for all private property taken there can be as little doubt.” Id. , at 337. Under the Court’s rationale, however, where the Government wishes to preserve a…