“Necessity” is an affirmative defense in which a defendant admits to committing a criminal act, but contends that doing so was necessary in order to prevent an even greater harm. Defendants have the burden of proving this defense and must do so by a preponderance of the evidence. If successful, the accused may be entirely acquitted of the charge(s).
Necessity is available as a defense for most types of criminal charges. This even includes the crime of an inmate unlawfully escaping from county jail or state 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.”
Note that duress is a defense that is similar to the defense of necessity. Duress is the defense in which defendants claim that they committed a criminal act but had to do so in order to avoid an immediate threat of death or serious harm. An example is when a person holds a knife to an accused’s throat and threatens the defendant’s life if he/she doesn’t commit a crime.
Our California criminal defense attorneys will explain the following in this article:
- 1. How does a person 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?
1. How does a person establish a necessity defense?
People must prove the following elements of the necessity defense to succeed in using it:
- the defendant acted in an emergency to prevent a significant bodily harm or evil to himself/herself or someone else,
- the accused had no adequate legal alternative,
- the defendant’s acts did not create a greater danger or greater evil than the one avoided,
- when the defendant acted, he/she 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
- the accused 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.
The defendant has 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, the defendant must prove that it is more likely than not that each of the six above elements is true. If successful, an accused will not be found guilty of a criminal act.
Note that the reason courts created this affirmative defense was to encourage people to do whatever they need to in order to solve a severe problem or immediate threat of a harm, even if it means committing a crime.3 However, courts will not accept the defense if it will encourage people 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 the defendant to show that he/she 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 of a prison inmate by other inmates,5
- a sexual attack of 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 the accused can show that he/she had no legal alternative to committing the crime charged.
California courts have taken a pretty tough line on what defendants have to show in order to prove this element of the defense.
For example, in rejecting the defense on account of this element, court have commented:
- a defendant 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 defendant, 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. But it stated that the emergency would have to occur in the car while the defendant was driving.13
1.3. Actual and reasonable belief
For this defense to work, defendants have to show that both:
- they actually believed their acts were necessary to prevent a harm, and
- it was reasonable for the accused to hold this belief.
When analyzing the defendant’s actual belief, a judge or jury will focus on all the information the accused had at the time of the act. Information that surfaces after an act is irrelevant.14
As to reasonability, it does not matter whether a defendant’s belief was right or correct. All that matters 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 try and use a necessity defense to avoid the crime of unlawfully escaping from a county jail or state prison.
To successfully assert the defense, people have to show:
- the defendant was faced with a specific threat of death, forcible sexual attack, or substantial bodily injury in their immediate future,
- there was no time for the defendant 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,
- the defendant 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
- the defendant immediately reported to the proper authorities when he/she had attained a position of safety from the immediate threat.16
Again, the defendant bears the burden of proving these elements and the standard of proof is by a preponderance of 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 a 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 a defendant to assert the necessity defense. By arguing necessity, an accused pretty much admits that he/she did commit the crime, and the accused focuses on showing that he/she had a good reason for doing it. If the defendant also intends to argue that he/she did not commit the crime, then the party 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 a defendant can successfully prove the following:
- someone threatened or menaced the defendant,
- someone demanded or requested that the defendant commit a crime to avoid the threat being carried out, and
- the accused reasonably believed that he/she or someone else’s life would be in immediate danger if he/she 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. An accused can assert the defense even if he/she had time to think the harm over, and
- with duress, the defendant only needs to raise a reasonable doubt about the elements of the defense. But the defendant has to prove all of the elements of the necessity defense by a preponderance of the evidence.
For additional help…
For more information or to discuss your case with a criminal defense lawyer, we invite you to contact our law office at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.
Our lawyers also represent clients throughout California State, including those in Los Angeles and Orange County.
- 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) 64 Cal.Rptr.2d 654.
- 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.