Model Jury Instruction on Necessity

IF THE TRIAL JUDGE DECIDES IT IS APPROPRIATE UNDER THE CIRCUMSTANCES OF THIS CASE TO LET THE QUESTION OF NECESSITY GO TO THE JURY SHE WILL LIKELY INSTRUCT THE JURORS IN MORE OR LESS THE FOLLOWING MANNER – from Page 1 Instruction 9.240 – 2009 Edition STANDARDIZED JURY INSTRUCTIONS – NECESSITY – “ … the defense one pleads when circumstances force one to perform a criminal act.”

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The defendants have offered evidence suggesting that he (she) may have acted out of necessity in this matter.  In some situations, necessity may excuse a person’s committing what would otherwise be a criminal offense.  The rule of necessity is sometimes called the rule of “competing harms” or “the lesser evil.”  It is based on the premise that sometimes, under exceptional circumstances, the values that are normally protected by obedience to the law can be overshadowed by other, more important values.

The rule of necessity exists because it would be unjust and contrary to public policy to impose criminal liability on a person if the harm that results from his breaking the law is significantly less than the harm that would result from his complying with the law in that particular situation.  For example, a person may be justified in trespassing on his neighbor’s land to save a child being attacked by a dog.  Another example would be a person who does not have a firearms license, but who may be justified in taking a gun for safekeeping away from someone who indicates an immediate intent to use it improperly.

Before you may find the defendant guilty of the offense charged, the Commonwealth must prove beyond a reasonable doubt that the defendant did not act out of necessity. Three factors must be present for the rule of necessity to apply:

First:  That the defendant was faced with a clear and imminent danger, not one that was debatable or speculative;
Second:  That the defendant reasonably expected that his (her) actions would be effective in directly reducing or eliminating the danger; and
Third:  That there was no legal alternative which would have been effective to reduce or eliminate the danger.

Before you may find the defendant guilty, the Commonwealth must prove that the defendant did in fact commit the offense, and must also prove beyond a reasonable doubt that one or more of those three factors were absent and therefore the defendant did not act out of necessity.

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