Alaska Criminal Pattern Jury Instructions
Controlled Substances
11.81.320 Affirmative Defense of Necessity

§ 11.81.320 Affirmative Defense of Necessity

The defendant has raised the affirmative defense of necessity. To establish this affirmative defense, the defendant must prove that each of the following statements is more likely true than not true:

(1) the defendant believed that [he] [she] violated the law to prevent a significant harm;

(2) the defendant believed that [he] [she] had no adequate alternative to violating the law;

(3) the defendant’s beliefs described in statements (1) and (2) were reasonable; and

(4) the harm caused was not disproportionate to the harm avoided.

The burden is on the defendant to prove necessity. The defendant does not have to prove necessity beyond a reasonable doubt. Rather, the burden is on the defendant to prove necessity by a preponderance of the evidence, which is a lower standard than beyond a reasonable doubt. Preponderance of the evidence means “more likely true than not true.”

If you find that the state has proved beyond a reasonable doubt each of the elements of the crime of charged in count but you also find that the defendant has proved by a preponderance of the evidence the affirmative defense of necessity, then you must find the defendant not guilty on that count.

USE NOTE

The defense of necessity is a common law defense allowed by AS 11.81.320. The elements in this instruction are taken from case law. Nelson v. State , 597 P. 2d 977, 979-80 (Alaska 1979);Cleveland v. Municipality of Anchorage, 631 P.2d 1073 (Alaska 1981);Reeve v. State, 764 P.2d 324 (Alaska 1988);Siebold v. State, 959 P.2d 780 (Alaska App. 1998);Degler v. State, 741 P.2d 659 (Alaska App. 1987).

Under certain circumstances, an additional instruction that addresses reasonable but mistaken belief may be necessary. The objective reasonable person standard includes reasonable mistakes, but not unreasonable mistakes. Bird v. Municipality of Anchorage, 787 P.2d 119, 121 (Alaska App. 1990);Cleveland v. Municipality of Anchorage, 631 P.2d at 1078;Nelson v. State , 597 P. 2d at 979-80.

The trial court makes the initial determination whether to give this instruction based on the “some evidence” standard. See Siebold v. State, 959 P.2d at 780;Cleveland, 631 P.2d at 1073;Schnabel v. State, 663 P.2d 960, 966 (Alaska App. 1983);McCracken v. State, 743 P.2d 383, 385 (Alaska App. 1987);Wells v. State, 687 P. 2d 346, 350 (Alaska App. 1984);Reeve v. State, 764 P.2d at 324;Bird v. Municipality of Anchorage, 787 P.2d at 119;Gerlach v. State, 699 P.2d 358, 362 (Alaska App. 1985).

 

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