necessitySometimes, an individual may have to make a quick decision whether or not he or she should do something against the law to prevent serious harm from happening to him or herself or to someone else. If someone has done something illegal in order to keep something awful from happening then he or she could rely on the defense of necessity in court. The defense of necessity also is known as the defense of the “lesser of two evils.” When a person decides to use this defense to defend his or her actions, the individual is admitting to committing a criminal act. However, the person is claiming, through the necessity defense, that the act was justified due to the surrounding circumstances.


Proving the Necessity Defense is Justifiable
A defendant is able to prove the necessity defense in court with the help of a skilled criminal defense attorney. The defense lawyer will work to establish the defense by proving that the following are true about the case:

  • there was an exact threat of imminent danger and the threat was significant;
  • the defendant needed to act quickly to ward off the threat;
  • there was no other alternative but to act;
  • the defendant didn’t cause the imminent threat;
  • the defendant acted out of necessity; and
  • the harm caused wasn’t greater than the harm he or she prevented through the act.

How Does This Differ From Duress?

Having a knowledgeable defense attorney on your side is crucial when arguing that you did something illegal due to out-of-the-ordinary circumstances but your actions should not lead to a criminal conviction. Duress and necessity are similar but different defenses. Both the duress and necessity defense cannot be proven unless there was no other reasonable alternative to breaking the law. However, the defense of duress, is used when the defendant acted illegally when forced to do so by another person. Necessity, on the other hand, is a choice between what is worse. Necessity involves a person breaking the law to prevent harm. If a criminal defense attorney is able to prove that the defendant acted because the harm he or she prevented was worse than the harm resulting from his or her action, then the lawyer commonly wins the case.

An Example of When to Use the Necessity Defense

Perhaps, a mother has a child who is having a severe allergic reaction to peanuts and has stopped breathing while they are driving in the car. The mother’s cell phone is not working and they are in a rural area. The mother then decides to drive her child to the nearest emergency room as quickly as she can, with no one getting hurt in the process. If she is charged with careless driving, the mother could use this defense in court to explain her actions because she was trying to avoid her child’s death.