Necessity Defense

The fact that a Criminal Act was committed out of necessity is a complete defense to most California Criminal Charges.

In order to assert the Defense of Necessity, the Defendant has the burden of proving by a Preponderance of the Evidence (ie more likely than not) that the following 6 facts occurred:

1. s/he acted in an emergency to prevent a significant bodily harm or evil to him, her, or someone else;
2. s/he had no adequate legal alternative;
3. the defendant’s acts created no greater danger than the one avoided;
4. at the time of acting, the defendant actually believed that the act was necessary to prevent the threatened harm or evil;
5. a reasonable person would have believed the same; and
6. the defendant did not Substantially contribute to the emergency.

The Defense of Necessity is different from other legal defenses because it doesn’t negate any of the elements but instead offers a justification for why the criminal offense occurred.  It’s society’s viewpoint that while crimes are bad, there are some situations where committing a crime to prevent a greater evil is necessary.

The defenses of necessity and duress are similar under California Law but differ in one significant aspect: time to think.  Under necessity, the defendant has time to ponder on his or her future acts.  With Duress the defendant has no time to think or seek an alternative course of action.

The Defense of Necessity is an Affirmative Defense that must be proven by the Defendant.  This means that proper evidence must be found and presented.  The standard of proof is Preponderance of the Evidence.

If you or a loved one are charged with a crime, and the criminal act was done so in order to prevent a greater harm, you may be able to successfully assert the Defense of Necessity.

Contact our Necessity Defense Attorneys for a Free and Confidential Analysis by calling 619-708-2073 or emailing us at attorneys@hullingerfirm.com.