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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
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

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