What Is the "Necessity" Defense?

A defense based on the lesser of two evils.

Defend your rights. We've helped 95 clients find attorneys today.

There was a problem with the submission. Please refresh the page and try again
Full Name is required
Email is required
Please add a valid Email
Phone Number is required
Please enter a valid Phone Number
Zip Code is required
Please add a valid Zip Code
Description is required
By clicking "Find a Lawyer", you agree to the Martindale-Nolo Texting Terms. Martindale-Nolo and up to 5 participating attorneys may contact you on the number you provided for marketing purposes, discuss available services, etc. Messages may be sent using pre-recorded messages, auto-dialer or other automated technology. You are not required to provide consent as a condition of service. Attorneys have the option, but are not required, to send text messages to you. You will receive up to 2 messages per week from Martindale-Nolo. Frequency from attorney may vary. Message and data rates may apply. Your number will be held in accordance with our Privacy Policy.

You should not send any sensitive or confidential information through this site. Any information sent through this site does not create an attorney-client relationship and may not be treated as privileged or confidential. The lawyer or law firm you are contacting is not required to, and may choose not to, accept you as a client. The Internet is not necessarily secure and emails sent through this site could be intercepted or read by third parties.

Occasionally, a person faces a situation that requires doing something illegal in order to prevent serious harm. In such a situation, the defense of necessity, which is also called the "lesser of two evils" defense, may come into play.

Most states recognize the necessity defense in some form, but even when permitted, it's rarely successful. And, traditionally, the necessity defense isn't available to a defendant who kills an innocent person, regardless of the circumstances.

How Does the Necessity Defense Work?

A defendant who raises the necessity defense admits to committing what would normally be a criminal act but claims the circumstances justified it.

Normally, to establish a necessity defense—a tall order—a defendant must prove that:

  • a specific threat of significant, imminent danger existed
  • the situation required an immediate necessity to act
  • no effective legal alternatives were available
  • the defendant didn't cause or contribute to the threat
  • the defendant acted out of necessity at all times, and
  • the harm caused wasn't greater than the harm prevented.

A defendant has the best chance at succeeding with this defense when the criminal act is minor and the potential harm is significant (life-threatening or catastrophic).

Example of the Necessity Defense

A defendant was convicted of driving with a suspended license for traveling to a telephone to call for help for his pregnant wife. He didn't have his own phone, and his wife was experiencing back and stomach pains. He first walked to his only neighbor's house to use the phone but found no one home. He then drove a mile and a half to the nearest phone to call his mother-in-law for help. On the drive back home, the police stopped him for a broken taillight and arrested him for driving with a suspended license. Recognizing that circumstances beyond one's control sometimes force a defendant to engage in illegal conduct, the appellate court ruled that the trial court should have allowed the defendant to present a necessity defense. (State v. Cole, 403 S.E.2d 117 (S.C. 1991).)

DEFEND YOUR RIGHTS
Talk to a Defense attorney
We've helped 95 clients find attorneys today.
There was a problem with the submission. Please refresh the page and try again
Full Name is required
Email is required
Please add a valid Email
Phone Number is required
Please enter a valid Phone Number
Zip Code is required
Please add a valid Zip Code
Description is required
By clicking "Find a Lawyer", you agree to the Martindale-Nolo Texting Terms. Martindale-Nolo and up to 5 participating attorneys may contact you on the number you provided for marketing purposes, discuss available services, etc. Messages may be sent using pre-recorded messages, auto-dialer or other automated technology. You are not required to provide consent as a condition of service. Attorneys have the option, but are not required, to send text messages to you. You will receive up to 2 messages per week from Martindale-Nolo. Frequency from attorney may vary. Message and data rates may apply. Your number will be held in accordance with our Privacy Policy.

You should not send any sensitive or confidential information through this site. Any information sent through this site does not create an attorney-client relationship and may not be treated as privileged or confidential. The lawyer or law firm you are contacting is not required to, and may choose not to, accept you as a client. The Internet is not necessarily secure and emails sent through this site could be intercepted or read by third parties.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you