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The Necessity Defense

Sometimes we call the necessity defense, “the Choice of Evils Defense.”

So, what is the necessity defense? It is a common law defense, springing from the moral hearts of the people over thousands of years. And the judges accepted it, and helped incorporate it into the common law.

People believe in the defense. Why? Because convicting a person of a crime who was doing the right thing at the time; is not justice.

To convict a person on a technicality, or the letter of the law, can work a grave injustice. So this defense sounds in the fundamental human right to a real, unmanaged, jury trial.

The common law is available to all in Minnesota. But the legislature and the courts can modify the common law through legislation and court decisions. And of course, so can the jury, given the chance.

There is no Minnesota Statute that generally addresses the defense of necessity. But there is at least one Minnesota Statute that addresses it in a specific situation.

The elements of the necessity defense

As the Minnesota Court of Appeals summarized:

“A necessity defense defeats a criminal charge ‘if the harm that would have resulted from compliance with the law would have significantly exceeded the harm actually resulting from the defendant’s breach of the law.‘ … In addition, the defense exists only if (1) there is no legal alternative to breaking the law, (2) the harm to be prevented is imminent, and (3) there is a direct, causal connection between breaking the law and preventing the harm.“

“Courts may require the defense attorney to produce evidence supporting the defense at trial, before instructing the jury on the defense. … But Minnesota appellate courts have disagreed about whether the prosecution has the ultimate burden of persuasion on the defense.

State v. Rein, 477 N.W.2d 716 (Minn. Ct. App. 1991)

Is Necessity an affirmative defense?

A defendant asking for a necessity defense “jury instruction” may need to produce some evidence at trial supporting the defense. But while some Minnesota appellate courts have disagreed about whether the prosecution has the ultimate burden of persuasion on the necessity justification, the burden of proof should properly be on the prosecution.

Types of cases

Minnesota Statutes §169A.53, subd. 3(b)(11) in 2017 makes the necessity defense available in cases involving judicial review of DWI administrative driver’s license revocations.

Examples of cases with a potential necessity defense include:

Litmus test for democracy & jury rights

Remember the Amsterdam family that hid the Jewish family of Anne Frank from the Nazi police in 1943?

anne frank diary of a young girl cover. necessity defense mn. anne frank 280 webp
Lesser evil justification

Were they guilty of a crime, when lying to the police at the door? If so, should we then accept a necessity defense?

We have a constitutional right to present our defense. But what if a judge would not allow the jury to even consider a choice of evils defense? And would that “jury trial” be a sham — with no real jury court at all?

Justification defense

Necessity is not only an affirmative defense, but also a “justification defense.” A justification defense may apply after the prosecution has met its burden of proving intent to do the prohibited act. But there is evidence that the accused person acted to avoid an even greater evil harm than the law violated.

There can be cases, however, of justification in situations where intent to do the prohibited act is negated. And in such a case, the burden of persuasion must be on the prosecution. So this avoids an unconstitutional shifting of the burden of proof to the defense.

Jury Rights: A Call to Justice

A review of the appellate cases reveals a conflict between the individual right to a real jury trial; on the one hand, and on the other hand, a manipulated, legally managed process that results in a vestigial “jury trial” in name only.

So to the extent that democracy and justice matter; lawyers and judges should unleash juries to truly hear the defense, and deliver a just verdict.

Thomas Gallagher, Minnesota Criminal Defense Attorney 400 webp
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