Defenses - Necessity

Question 1

Rule

Answer 1

D must hold (1) an honest and reasonable belief that his conduct is (2) necessary to (3) prevent greater harm to persons or property

Question 2

Unreasonable

Answer 2

No defense of necessity, must be REASONABLE

Question 3

Necessary

Answer 3

(1) no reasonable alternative and (2) necessity has to be imminent (!)

Question 4

Clean Hands Limitation

Answer 4

If D’s negligence brought about the situation, D cannot use necessity defense. (cannot start a fire and then use necessity defense to escape liability of destroying a house to stop the fire)

Question 5

Legislative Predetermination Limitation

Answer 5

If the legislature has determined that necessity defense is not allowed then the defense is not allowed.

Question 6

Homicide Case Limitation

Answer 6

No necessity defense for homicide cases (Dudley)

Question 7

Unger Case Sexual Abuse in Prisons

Answer 7

CA & Majority: For prison necessity the prisoner must:

(1) be faced with a specific threat of death, forcible sexual attack, or substantial bodily injury in the immediate future
(2) No time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory
(3) No time or opportunity to resort to the courts
(4) No evidence of force or violence used towards prison personnel or other “innocent” persons in the escape
(5) Prisoner immediately reports to the proper authorities when he attained a position of safety from the immediate threat

Question 8

Political Necessity

Answer 8

4 requirements (from Warshow case, protest of power plant)

(1) There must be a situation of emergency arising without fault on the part of the actor concerned
(2) This emergency must be so imminent and compelling as to raise a reasonable expectation of harm, either directly to the actor or upon those he was protecting
(3) This emergency must present no reasonable opportunity to avoid the injury without doing the criminal act
(4) Injury impending from the emergency must be of sufficient seriousness to out measure the criminal wrong

Question 9

Necessity - MPC

Answer 9

D must honestly and reasonably believe that his conduct is necessary to prevent greater harm to persons or property

• No reasonable alternative or imminent requirement
• Clean hands and legislative predetermination apply