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  • Attorney Neil Tassel

The defense of necessity-unusual but important

An interesting defense to criminal allegations is that of "necessity". Courts have long recognized that in certain instances it may be appropriate to excuse conduct that would otherwise be criminal when greater harm is avoided.


In Massachusetts, in order to establish a defense of necessity, a defendant must affirmatively offer some evidence that their conduct was necessary to avoid greater harm. The burden will then be shifted to the Commonwealth to prove that the defendant did not act out of necessity. The Commonwealth must prove beyond a reasonable doubt one of the following three things. First, that the defendant was not faced with a clear and imminent danger, but rather one that was debatable or speculative; or second, that the defendant did not reasonably expect that their actions would be effective in directly reducing or eliminating the danger; or third, that the defendant had a reasonable legal alternative which would have been effective in reducing or eliminating the danger.


So, a defendant can only be found guilty if the Commonwealth proves beyond a reasonable doubt that the defendant did in fact commit the criminal act, and also proves beyond a reasonable doubt that one or more of those three conditions existed.


In the right circumstances, necessity can be a valuable defense. The classic example used in law schools is the person on a boat that catches fire. In this hypothetical example, the person can't swim and has to trespass on a dock with a no-trespassing sign to escape the danger of the burning boat. It's an interesting issue when the facts support a necessity defense and it's exceedingly rare. In a recent case of mine, a client was within 100 yards of an ex-girlfriend's home when the police encountered him. He was in the process of retrieving several pit bull dogs that she released from the home. There may be a defense of necessity present. He believed that the dogs presented a danger to those that they encountered; he believed that he had to capture them or they might attack someone; and he could not rely on anyone else to capture the dogs since they might attack other persons that intervened.


It may be surprising to learn that there are real cases in which an escaped prisoner raises the defense. In that context, if a necessity defense is raised in a prison escape case, at a minimum there must be evidence that the defendant: (1) was faced with a specific threat of death, forcible sexual attack, or substantial bodily injury in the immediate future; (2) had no time for complaint to the authorities, or shows a history of futile complaints; (3) had no time or opportunity to resort to the courts; (4) used no force or violence toward prison personnel or other innocent persons in escaping; and (5) immediately surrendered to authorities once safe from the immediate threat.


Every legal situation is unique. As always, I am happy to discuss your legal situation to see if there is any way that I can be of assistance.





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