§ 5.7 NECESSITY [1]

In certain limited circumstances, a person may be justified in the commission of an otherwise criminal act because of necessity—that is, where the harm from the commission of the crime is significantly exceeded by the harm that would have resulted if the defendant had not violated the law. [2]

This justification applies only if

(1) the defendant is faced with a clear and imminent danger, not one that is debatable or speculative, [3]

(2) the defendant can reasonably expect that (his/her) action will be effective as the direct cause of abating the danger,

(3) there is no legal alternative that will be effective abating the danger, [4] and

(4) the legislature must not have acted to preclude the defense by a clear and deliberate choice regarding the values at issue. [5]

The defendant may take only such unlawful action as is necessary to alleviate the danger.

Where the issue of necessity is raised, the Commonwealth has the burden to prove the absence of necessity beyond a reasonable doubt. [6]


[1] This instruction is based primarily on the opinions in Commonwealth v. Kendall, 451 Mass. 10, 13-16 (2008); Commonwealth v. Pike, 428 Mass. 393, 400 (1998) (quoting Commonwealth v. Hutchins, 410 Mass. 726, 731 (1991); and Commonwealth v. Iglesia, 403 Mass. 132 (1988). In determining whether the instruction is warranted, the evidence is viewed in the light most favorable to the defendant. Commonwealth v. Lindsey, 396 Mass. 840, 842 (1986).

[2] Commonwealth v. Kendall, 451 Mass. 10, 13 (2008) (“The defense of necessity, also known as the ‘competing harms’ defense, ‘exonerates one who commits a crime under the ‘pressure of circumstances’ if the harm that would have resulted from compliance with the law . . . exceeds the harm actually resulting from the defendant’s violation of the law. At its root is an appreciation that there may be circumstances where the value protected by the law is, as a matter of public policy, eclipsed by a superseding value . . . “ (quoting Commonwealth v. Hood, 389 mass. 581, 590 (1983) (quoting Commonwealth v. Brugmann, 13 Mass. App. Ct. 373, ,376-77 (1982)))).

[3] “The imminent danger may be faced by a third person rather than the defendant.” Commonwealth v. Power-Koch, 69 Mass. App. Ct. 735, 739, review denied, 449 Mass. 1113 (2007); Commonwealth v. Ben B., 59 Mass. App. Ct. 919, 920 (2003); Commonwealth v. O’Kane, 53 Mass. App. Ct. 466, 470 (2001) (citing Commonwealth v. Weaver, 400 Mass. 612, 615 (19897)).

[4] In Commonwealth v. Kendall, 451 Mass. 10, 15-16 (2008), the defendant was not entitled to the defense or the instruction because the evidence was lacking as to the third element.

[5] The fourth element required for this defense is one to be determined by the judge. Commonwealth v. Lora, 43 Mass. App. Ct. 136, 139-41 (1997). To the extent that the legislature has limited the applicability of the defense in certain circumstances, the jury should be instructed concerning the limitations. Commonwealth v. Lora, 43 Mass. App. Ct. at 140-41, n.7.

[6] Commonwealth v. Kendall, 451 Mass. 10, 14 (2008); see Commonwealth v. Iglesia, 403 mass. 132, 134 (1988); Commonwealth v. Thurber, 383 Mass. 328, 331 (1981).