What is a necessity Defense?
The necessity defense is the defense that you actually committed the crime but there is some reason that you shouldn’t be punished for it. The general premise behind the defense is that you shouldn’t be punished for doing something practical, yet illegal, if the good of the act outweighs the bad of the crime. It’s an essence a balancing act, weighing the intention and actions of the Defendant, versus the evil which the law seeks to protect.
The theory is that this crime would never have been committed had it not been for some necessity. Therefore, why punish someone who is not an inherently evil person or a person who does inherently bad things? For a complete history of the necessity defense, there are several well-written scholarly articles on the topic. A simple Google Search of the history of the Necessity Defense will provide several on point articles and pages.
In order to establish a necessity defense, the Defendant must show the following: (1) Defendant reasonably believed that his action was necessary to avoid an imminent threat of death or serious bodily injury to himself or others; (2) defendant did not intentionally or recklessly place himself in a situation in which it would be probable that he would be forced to choose the criminal conduct; (3) there existed no other adequate means to avoid threatened harm except criminal conduct; (4) harm sought to be avoided was more egregious than the criminal conduct perpetrated to avoid it, and (5) defendant ceased the criminal conduct as soon as necessity or apparent necessity for it ended.
Examples of when you can use Necessity Defense?
In W.E.P. vs State of Florida, 790 So.2d 1166 (Fla. 4th DCA 2001), the fourth District Court of appeals considered a necessity defense case where the Defendant and his brother fled in a truck away from an officer. The Defendant testified he was being chased by people who were trying to hurt him, and he was trying to protect himself and his little brother. Therefore, he drove away despite the Officer instructing him to remain. The Defendant reported to police authorities as soon as the danger dissipated. The Defendant was charged with leaving the scene of an accident and fleeing (among other things). The District Court stated that there no criminal culpability by the Defendant and the case should have been dismissed.
As part of their reason they cited the necessity defense, stating “Because [defendant] was fleeing to avoid injury to himself and to brother, it would make no logical sense to require [defendant] to remain at the scene where his safety was in danger from the aggressors.” The Court also made note of the fact that the Defendant notified police authorities as soon as he was out of danger. Therefore, the Court found the Defendant’s actions satisfied the necessity requirements laid out above.