The Necessity Defense is sometime called the Choice of Evils Defense.  It is a common law defense, springing from the moral hearts of the people over hundreds, thousands of years, accepted by courts and incorporated into the common law.  The reason the People believe in the defense is that we see no justice in convicting a person of a crime who was doing the right thing in the circumstances.  To convict a person of a crime based upon a technicality, or the mere literal letter of the law, can sometimes work a grave injustice.  This is defense sounds in the fundamental human right to a real, unmanaged, jury trial.

anne-frank-CMPRSDThe common law is available to all in Minnesota.  The legislature and the courts, however, can modify it through legislation and court decisions.  There is no Minnesota Statute that generally addresses the defense of necessity, but there is at least one Minnesota Statute that address it in a specific situation.

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.

United States v. Seward, 687 F.2d 1270, 1275 (10th Cir.1982) (quoting State v. Marley, 54 Haw. 450, 509 P.2d 1095 (1973)), cert. denied, 459 U.S. 1147, 103 S.Ct. 789, 74 L.Ed.2d 995 (1983). 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.

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

Courts may require the defense produce some evidence to support the defense at trial, before instructing the jury on the defense. State v. Brodie, 532 N.W.2d 557 (Minn. 1995) (A defendant seeking a necessity defense instruction has the burden of making a prima facie showing of necessity.)  Minnesota appellate courts have disagreed about whether the prosecution has the ultimate burden of persuasion on whether the defense applies in a given case.  See, State v. Hage, 595 N.W.2d 200 (Minn. Sup. Ct. 1999).

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

Examples of cases where the necessity defense has been raised include protester cases, emergencies, domestic violence situations, criminal gun charges, and medical marijuana necessity.

Justification defense
Necessity has been characterized as, not only an affirmative defense, but also a justification defense – where the prosecution has met its burden of evidence proving intent to do the prohibited act, but there is evidence that the accused person acted justly, to avoid an even greater evil harm than the law violated.  There can be cases, however, where people think of justification in situations where intent to do the prohibited act is negated.  In such a case, the burden of persuasion must be on the prosecution to avoid an unconstitutional shifting of the burden of proof to the defense.

Jury Rights – A Call to Justice
This defense, and review of the appellate cases reviewing it, demonstrate the conflict between the individual human right to a real jury trial, on the one hand, and on the other hand, a manipulated, legally managed process that results in at best a vestigial jury trial.  To the extent that democracy and the People’s sense of justice matter in our courts, lawyers and judges should unleash juries to truly hear the evidence of the defense of the accused and decide cases justly.

Question?  You can call Minneapolis Defense Attorney Thomas Gallagher at (612) 333-1500