NECESSITY AS A DEFENSE

TRUST OUR ST. PETERSBURG CRIMINAL DEFENSE LAWYER 

Necessity is similar in nature to the duress defense, which is also outlined in the "Defenses" section of our website, but there are some distinctions. For that reason, they have been grouped separately. Despite their differences (which are explained by the Supreme Court in U.S. v. Bailey below), both necessity and duress are recognized as affirmative defenses in the state of Florida. In raising a necessity defense, the accused admits to committing the crime charged, but asserts that he or she did so to avoid a dangerous situation or other emergency that he or she did not intentionally cause. If the jury finds that the defendant committed the charged offense because of necessity, the jury must find the defendant not guilty. An experienced St. Petersburg area criminal defense attorney can explain the necessity defense in greater detail and whether it presents a viable defense in your case.

Applicable Jury Instructions

Florida Standard Jury Instruction 3.6(k) provides as follows:

An issue in this case is whether the defendant acted out of necessity in committing the crime of ( crime charged).

It is a defense to ( crime charged) if the defendant acted out of necessity. In order to find the defendant committed the ( crime charged) out of necessity, you must find the following six elements:

1. The defendant reasonably believed [a danger][emergency] existed which was not intentionally caused by the defendant;
2. The [danger][emergency] threatened significant harm to him or herself, or to a third person;
3. The threatened harm must have been real, imminent, and impending;
4. The defendant had no reasonable means to avoid the [danger][emergency] except by committing the ( crime charged);
5. The ( crime charged) must have been committed out of necessity to avoid the [danger][emergency];
6. The harm that the defendant avoided must outweigh the harm caused by committing the ( crime charged).

If the defendant has been charged with the crime of Escape, the instruction reads a bit differently, as follows:

It is a defense to ( crime charged) if the defendant acted out of necessity. In order to find the defendant committed the ( crime charged) out of necessity, you must find the following six elements:

1. The defendant reasonably believed [a danger][emergency] existed which was not intentionally caused by the defendant;
2. The [danger][emergency] threatened death or serious bodily injury;
3. The threatened harm must have been real, imminent, and impending;
4. The defendant left [the place of his or her confinement][the vehicle in which he or she was being transported to or from his or her work on a public road] because he or she reasonably believed that escape was necessary to avoid the danger of death or serious bodily injury, rather than with the intent to elude lawful authority;
5. The ( crime charged) must have been committed out of necessity to avoid the [danger][emergency];
6. The harm that the defendant avoided must outweigh the harm caused by committing the ( crime charged).

"Imminent and impending" means the [danger][emergency] is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient to prove this defense. Nor can the defendant use the defense of duress if he or she committed the crime after the danger from the threatened harm had passed.

The reasonableness of the defendant's belief that [a danger][emergency] existed should be examined in light of all the evidence.

In deciding whether it was necessary to commit the ( crime charged) you must judge the defendant by the circumstances by which he or she was surrounded at the time the crime was committed.

The [danger][emergency] facing the defendant need not have been actual; however, to justify the commission of the (crime charged) the appearance of the [danger][emergency] must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the [danger][emergency] could be avoided only be committing the (crime charged). Based upon appearances, the defendant must have actually believed that the [danger][emergency] was real.

If you have a reasonable doubt as to whether the defendant committed the ( crime charged) out of necessity, you should find the defendant not guilty.

However, if you are convinced beyond a reasonable doubt that the defendant did not commit the ( crime charged) out of necessity, you should find the defendant guilty of all the elements of the charge have been proved.

Relevant Case Law

1. United States v. Bailey, 444 U.S. 394 (1980)(common law historically distinguished between the defenses of duress and necessity. Duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law. While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct he lesser of two evils. Thus, where A destroyed a Dike because B threatened to kill him if he did not, A would argue that he acted under duress, whereas if A destroyed the dike in order to protect more valuable property from flooding, A could claim a defense of necessity.
2. Dwayne F. Hunter v. State of Florida, 687 So.2d 277 (Fla. 5th DCA 1997)(to justify homicide in self-defense, one must demonstrate a real necessity [emphasis supplied] for taking a human life and a situation causing a reasonably prudent person to believe that danger is imminent; in the instant case, there is evidence from which the jury could have concluded that appellant did not "retreat to the wall" and that a reasonably cautious and prudent person would not believe there was a necessity for taking a human life).

The Bottom Line

Necessity is an affirmative defense that may be used as a basis for acquittal under certain circumstances. Like duress, the accused must have reasonably believed that committing the crime charged was necessary to avoid significant harm to himself or a third person. If the crime charged is Escape, then the accused must have reasonably believed that committing the crime charged was necessary to avoid serious bodily injury or death.

For more information on the necessity defense, and its potential applicability to your case, you may contact our office at any time.