“Necessity” is an affirmative defense in which you admit to committing a crime but contend that it was necessary to prevent even greater harm. If you prove necessity by a preponderance of the evidence, you may be entirely acquitted of the charge(s).
Necessity is full defense to most charges, including escaping from jail or prison. However, California courts have found it limited in cases involving:
- criminal acts motivated by an opposition to abortion, and
- the possession of marijuana or the cultivation of marijuana when it is done out of “medical necessity.”
Necessity is similar to the defense of duress, where you:
- admit to committing a crime, but
- it was necessary to avoid an immediate threat of death or serious harm.
An example is when a robber holds a knife to your throat and threatens your life if you do not hold up a bank teller for them.
Our California criminal defense attorneys will explain the following in this article:
- 1. How do I establish a necessity defense?
- 2. Does the defense apply to an inmate escaping from prison?
- 3. Is the defense inapplicable in certain cases?
- 4. How does the defense of necessity compare to the defense of duress?
- Additional reading
1. How do I establish a necessity defense?
You must prove the following elements of the necessity defense to succeed in using it:
- you acted in an emergency to prevent significant bodily harm or evil to yourself or someone else,
- you had no adequate legal alternative,
- your acts did not create a greater danger or greater evil than the one avoided,
- when you acted, you actually believed that the act was necessary to prevent the threatened harm or evil,
- a reasonable person would also have believed that the act was necessary under the circumstances, and
- you did not substantially contribute to the emergency situation.1
Example: During a severe flood, Adam destroys a dam to prevent more valuable property from getting damaged. Destroying the dam was undeniably a crime. But Adam is not guilty because he reasonably believed that it was still the right thing to do–or the “lesser of two evils.” Further, his acts did not make the flood any worse.
You have the burden of proving the above elements and must do so by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt.2
To meet the preponderance of the evidence test, you must prove that it is more likely than not that each of the six above elements is true. If successful, you will not be found guilty of a criminal act.
Note that the reason courts created this affirmative defense was to encourage you to do whatever you need to in order to solve a severe problem or immediate threat of harm, even if it means committing a crime.3 However, courts will not accept the defense if it will encourage you to behave in ways that create a severe problem in the immediate future.4
Questions often arise with the elements of the necessity defense with the meaning of:
- significant bodily harm,
- no adequate legal alternative, and
- actual and reasonable belief.
1.1. Significant harm
The first element of the necessity defense requires you to show that you acted to prevent a “significant bodily harm or evil.”
Whether or not something rises to the level of a significant bodily injury is determined by a judge or jury after analyzing all of the facts within a case.
Examples of types of harm where courts have found them to be significant enough to support the necessity defense include:
- an aggravated physical attack on a prison inmate by other inmates,5
- a sexual attack on a prison inmate by another inmate,6
- sleep deprivation.7
Examples of types of harm where courts have found them not significant enough to support a necessity defense include:
- financial hardship,8 and
- psychological harm as a result of being a member of a cult.9
1.2. No adequate legal alternative
The necessity defense only works if you can show that you had no legal alternative to committing the crime charged.
California courts have taken a pretty tough line on what you have to show in order to prove this element of the defense.
For example, in rejecting the defense on account of this element, courts have ruled that:
- a meth addict, who was forced to rob a store by two men, had an adequate legal alternative to the robbery when the men waited for her in a car,10
- a convicted felon, charged with having a firearm per Penal Code Section 29800, had an adequate legal alternative to personally removing a gun from a child because he could have removed the child from the presence of the gun,11 and
- a man, whose girlfriend was suffering a miscarriage at home, had an adequate legal alternative to driving recklessly to get help because he could have called an ambulance.12
Note that, in the last case, the court made clear that a medical emergency could justify a necessity defense against reckless driving. Though it stated that the emergency would have to occur in the car while you are driving.13
1.3. Actual and reasonable belief
For this defense to work, you have to show that both:
- you actually believed your acts were necessary to prevent harm, and
- it was reasonable for you to hold this belief.
When analyzing your actual belief, a judge or jury will focus on all the information you had at the time of the act. Information that surfaces after an act is irrelevant.14
As to reasonability, it does not matter whether your belief was right or correct. All that matters is if a reasonable person could have agreed with the belief.15
2. Does the defense apply to an inmate escaping from prison?
An inmate can attempt to assert a necessity defense to avoid the crime of unlawfully escaping from a county jail or state prison.
To successfully assert the defense, you have to show:
- you were faced with a specific threat of death, forcible sexual attack, or substantial bodily injury in your immediate future,
- there was no time to make a complaint to the authorities, or a complaint would have been ineffective,
- there was no time or opportunity to seek help from the courts,
- you did not use force or violence against prison personnel or other people in the escape (other than the person who was the source of the threatened harm), and
- you immediately reported to the proper authorities when you had attained a position of safety from the immediate threat.16
Again, you bear the burden of proving these elements, and the standard of proof is by a preponderance of the evidence.
3. Is the defense inapplicable in certain cases?
California courts have found that the necessity defense is extremely limited in two types of cases. These are in cases involving:
- criminal acts where criminal intent is motivated by an opposition to abortion,17 and
- the possession of marijuana or the cultivation of marijuana when it is done out of “medical necessity.”18
Note, too, that the necessity defense is somewhat limited in that it is inconsistent with other defenses. According to San Jose criminal defense attorney Cameron Bowman:
“It can be hard to determine whether it makes sense for you to assert the necessity defense. By arguing necessity, you pretty much admit you did commit the crime, and you focus on showing that you had a good reason for doing it. If you also intend to argue that you did not commit the crime, then you might end up making two different, and inconsistent, arguments.”19
4. How does the necessity defense compare to the defense of duress?
The necessity defense is related to but also distinct from the legal defense of duress.
Duress works as a legal defense if you can successfully prove the following:
- someone threatened or menaced you,
- someone demanded or requested that you commit a crime to avoid the threat being carried out, and
- you reasonably believed that you or someone else’s life would be in immediate danger if you did not commit the crime.20
The two distinct differences between necessity and duress are:
- for the necessity defense, the threatened harm does not need to be immediate. You can assert the defense even if you had time to think the harm over, and
- with duress, you only need to raise a reasonable doubt about the elements of the defense. However, you have to prove all of the elements of the necessity defense by a preponderance of the evidence.
For more in-depth information, refer to these scholarly articles:
- Codifying Necessity: Legislative Resistance to Enacting Choice-of-Evils Defenses to Criminal Liability – Tulane Law Review.
- The Necessity Defense and the Moral Limits of Law – New Criminal Law Review.
- Necessity Defined: A New Role in the Criminal Defense System– UCLA Law Review.
- The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil – The Journal of Criminal Law and Criminology.
- The Defense of Necessity and Powers of the Government – Criminal Law and Philosophy.
- California Criminal Jury Instructions (CALCRIM) No. 3403 – Necessity. Judicial Council of California Criminal Jury Instructions (2020 edition). See also People v. Pepper (1996) 41 Cal.App.4th 1029; and, People v. Kearns (1997) 55 Cal.App.4th 1128.
- People v. Waters (1985) 163 Cal.App.3d 935; and, People v. Condley (1977) 69 Cal.App.3d 999.
- People v. Heath (1989) 207 Cal.App.3d 892.
- People v. Verlinde (2002) 100 Cal.App.4th 1146.
- People v. Saavedra, (2007) 156 Cal.App.4th 561.
- People v. Lovercamp (1974) 43 Cal.App.3d 823.
- In re Eichorn, (1998) 69 Cal.App.4th 382.
- People v. Carrera (2001) Cal.App.4th – 2001 WL 1356993.
- People v. Patrick (1981) 126 Cal.App.3d 952.
- People v. Kearns (1997) 55 Cal.App.4th 1128.
- People v. Pepper (1996) 41 Cal.App.4th 1029.
- People v. Morris (1987) 191 Cal.App.3d 8.
- See same.
- People v. Pena (1983) 149 Cal.App.3d Supp. 14.
- See same.
- CALCRIM No. 2764 – Escape and the Necessity Defense. Judicial Council of California Criminal Jury Instructions (2020 edition). See also People v. Condley (1977) 69 Cal.App.3d 999; and, People v. Lovercamp (1974) 43 Cal.App.3d 823 [both cited above].
- People v. Garziano (1991) 230 Cal.App.3d 241. The court commented that since abortion is considered a constitutional right, defendants are not justified in committing a crime and arguing that they were only trying to stop abortions from occurring.
- See, for example, People v. Galambos (2002) 104 Cal.App.4th 1147. California voters created a legal medical marijuana program with the passage of the Compassionate Use Act (Proposition 215) in 1996. Because of this, courts have said that defendants can’t rely on the medical necessity defense for marijuana charges unless they cultivated and possessed marijuana in a way that complied with that law.
- San Jose criminal defense attorney Cameron Bowman is a former Santa Clara County Deputy District Attorney with many years of criminal trial experience on cases ranging from DUIs to special circumstances murder. Mr. Bowman represents clients in the Santa Clara County courts, the Contra Costa County courts, the San Francisco County courts, and the Alameda County courts, among other locations.
- CALCRIM 3402 – Duress or threats.