About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

29 UCLA L. Rev. 409 (1981-1982)
Necessity Defined: A New Role in the Criminal Defense System

handle is hein.journals/uclalr29 and id is 423 raw text is: COMMENTS NECESSITY DEFINED: A NEW ROLE IN THE CRIMINAL DEFENSE SYSTEM INTRODUCTION A man steals food from a grocery store to feed his family. A woman driving on a narrow road hits a hiker to avoid driving off a cliff. During time of war, a ship puts into an enemy port to avoid a threatening storm at sea. In each case a harm is committed: the store loses revenue, the hiker is hurt and the war effort is hindered. But in every case a benefit also accrues: a family is fed, a life is saved and the lives on the ship are secured. Given the mixed blessing of these events, should the actors be criminally liable for their acts and any consequent harm? Courts have long recognized that the wrong activity may be the right act given the circumstances, and justify the decision not to mete out punishment under the rubric of necessity.' This consideration of the necessity principle gradually became a for- malized defense,2 theoretically available to exculpate an actor for almost any criminal act. The development of the defense, how- ever, has not been smooth. The defense is susceptible to ad hoc 1. One definition of necessity is the assertion that conduct promotes some value higher than the value of literal compliance with the law. G. WILLIAMS, CRIMI- NAL LAW: THE GENERAL PART § 229, at 722 (2d ed. 1961). See also State v. Diana, 24 Wash. App. 908, 913, 604 P.2d 1312, 1316 (1979) (Generally, necessity is available as a defense when the physical forces of nature or the pressures of circumstances cause the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from a violation of the law.). As early as 1550, English law expressed the notion that a criminal act may not be punishable if it is the reasonable response to an emergency situation. Reninger v. Fagossa, 1 Plowden 1, 18, 75 Eng. Rep. 1, 29 (Pollard) (1550); Bishop of Salisbury's Case, 10 Coke Rep. 61A, 77 Eng. Rep. 1013, 1019 (1604). See also I M. HALE, His- TORY OF THE PLEAS OF THE CROWN 54 (1778). Similarly, the existence of the neces- sity defense has long been recognized in the United States. See, e.g., United States v. Ashton, 24 F. Cas. 873 (C.C.D. Mass. 1834) (No. 14,470); The William Gray, 29 F. Cas. 1300 (C.C.D.N.Y. 1810) (No. 17,694); State v. Jackson, 71 N.H. 552, 53 A. 1021 (1902); State v. Wray, 72 N.C. 240 (1875). For a thorough discussion of the cases, see Arnolds & Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J. CraM. L. & CRIMINOLOGY 289 (1974). 2. This formalization is evident in the necessity defense codifications. See notes 41-44 & accompanying text infra

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most