Massachusetts Superior Court Criminal Practice Jury Instructions (MCLE)
CHAPTER 5 INSTRUCTIONS ON DEFENSE AND JUSTIFICATION
§ 5.7 NECESSITY n1

§ 5.7 NECESSITY

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.

This justification applies only if

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

(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 in abating the danger, and

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

The defendant’s conduct is viewed at the time of the danger and not in hindsight. 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.

 

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