NECESSITY AS A DEFENSE
TRUST OUR ST. PETERSBURG CRIMINAL DEFENSE LAWYER
Necessity is similar in nature to the duress defense, which is also outlined
in the "Defenses" section of our website, but there are some
distinctions. For that reason, they have been grouped separately. Despite
their differences (which are explained by the Supreme Court in
U.S. v. Bailey below), both necessity and duress are recognized as affirmative defenses
in the state of Florida. In raising a necessity defense, the accused admits
to committing the crime charged, but asserts that he or she did so to
avoid a dangerous situation or other emergency that he or she did not
intentionally cause. If the jury finds that the defendant committed the
charged offense because of necessity, the jury must find the defendant
not guilty. An experienced St. Petersburg area criminal defense attorney
can explain the necessity defense in greater detail and whether it presents
a viable defense in your case.
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Applicable Jury Instructions
Florida Standard Jury Instruction 3.6(k) provides as follows:
An issue in this case is whether the defendant acted out of necessity in
committing the crime of (
crime charged).
It is a defense to (
crime charged) if the defendant acted out of necessity. In order to find the defendant
committed the (
crime charged) out of necessity, you must find the following six elements:
- The defendant reasonably believed [a danger][emergency] existed which was
not intentionally caused by the defendant;
- The [danger][emergency] threatened significant harm to him or herself,
or to a third person;
- The threatened harm must have been real, imminent, and impending;
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The defendant had no reasonable means to avoid the [danger][emergency]
except by committing the (
crime charged);
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The (
crime charged) must have been committed out of necessity to avoid the [danger][emergency];
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The harm that the defendant avoided must outweigh the harm caused by committing the (
crime charged).
If the defendant has been charged with the crime of Escape, the instruction
reads a bit differently, as follows:
It is a defense to (
crime charged) if the defendant acted out of necessity. In order to find the defendant
committed the (
crime charged) out of necessity, you must find the following six elements:
- The defendant reasonably believed [a danger][emergency] existed which was
not intentionally caused by the defendant;
- The [danger][emergency] threatened death or serious bodily injury;
- The threatened harm must have been real, imminent, and impending;
- The defendant left [the place of his or her confinement][the vehicle in
which he or she was being transported to or from his or her work on a
public road] because he or she reasonably believed that escape was necessary
to avoid the danger of death or serious bodily injury, rather than with
the intent to elude lawful authority;
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The (
crime charged) must have been committed out of necessity to avoid the [danger][emergency];
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The harm that the defendant avoided must outweigh the harm caused by committing the (
crime charged).
"Imminent and impending" means the [danger][emergency] is about
to take place and cannot be avoided by using other means. A threat of
future harm is not sufficient to prove this defense. Nor can the defendant
use the defense of duress if he or she committed the crime after the danger
from the threatened harm had passed.
The reasonableness of the defendant's belief that [a danger][emergency]
existed should be examined in light of all the evidence.
In deciding whether it was necessary to commit the (
crime charged) you must judge the defendant by the circumstances by which he or she
was surrounded at the time the crime was committed.
The [danger][emergency] facing the defendant need not have been actual;
however, to justify the commission of the (crime charged) the appearance
of the [danger][emergency] must have been so real that a reasonably cautious
and prudent person under the same circumstances would have believed that
the [danger][emergency] could be avoided only be committing the (crime
charged). Based upon appearances, the defendant must have actually believed
that the [danger][emergency] was real.
If you have a reasonable doubt as to whether the defendant committed the (
crime charged) out of necessity, you should find the defendant not guilty.
However, if you are convinced beyond a reasonable doubt that the defendant
did not commit the (
crime charged) out of necessity, you should find the defendant guilty of all the elements
of the charge have been proved.
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United States v. Bailey, 444 U.S. 394 (1980)(common law historically distinguished between the
defenses of duress and necessity. Duress was said to excuse criminal conduct
where the actor was under an unlawful threat of imminent death or serious
bodily injury, which threat caused the actor to engage in conduct violating
the literal terms of the criminal law. While the defense of duress covered
the situation where the coercion had its source in the actions of other
human beings, the defense of necessity, or choice of evils, traditionally
covered the situation where physical forces beyond the actor's control
rendered illegal conduct he lesser of two evils. Thus, where A destroyed
a Dike because B threatened to kill him if he did not, A would argue that
he acted under duress, whereas if A destroyed the dike in order to protect
more valuable property from flooding, A could claim a defense of necessity.
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Dwayne F. Hunter v. State of Florida, 687 So.2d 277 (Fla. 5th DCA 1997)(to justify homicide in self-defense,
one must demonstrate a real
necessity [emphasis supplied] for taking a human life and a situation causing a
reasonably prudent person to believe that danger is imminent; in the instant
case, there is evidence from which the jury could have concluded that
appellant did not "retreat to the wall" and that a reasonably
cautious and prudent person would not believe there was a necessity for
taking a human life).
Necessity is an affirmative defense that may be used as a basis for acquittal
under certain circumstances. Like duress, the accused must have reasonably
believed that committing the crime charged was necessary to avoid significant
harm to himself or a third person. If the crime charged is Escape, then
the accused must have reasonably believed that committing the crime charged
was necessary to avoid serious bodily injury or death. For more information
on the necessity defense, and its potential applicability to your case,
you may contact our office at any time.