VIEWS: 3 PAGES: 2 POSTED ON: 8/15/2012
NECESSITY – Shipwreck Cases (759), United States v. Oakland Cannabis Buyer’s Cooperative.(772) COMMON LAW, p. 759 “Lesser Evil” public policy v. values protected by law. 1) imminent danger from Natural Forces 2) defendant can effectively avert harm 3) no legal alternative 4) harm caused less than harm avoided 5) no clear legislative choice as to which is better 6) clean hands (means you didn’t cause the predicament that made you chose between lesser evils) note: 1) have to be able to avert greater harm, if you attempt and fail, then you are liable. 2)At CL the difference between Necessity and Duress is the difference between justification and excuse. 3) Justification extends to third parties, excuse does not. MODEL PENAL CODE, p.775 §3.02 Justification Generally: Choice of Evils 1) conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear. 2) when the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability. Note: 1) there is a question as to whether you can use this section if there is a more applicable defense, such as duress. 2.09(4) in duress trumps 3.02(b) in necessity. 2) If the crime requires intentional or knowingly, then you still have the necessity and duress defense if your conduct negligently or recklessly caused you to have to make the choice of lesser evils. TEXAS PENAL CODE, p. 15 §9.22 Necessity Conduct is justified if: 1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; 2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and 3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. Note: 1) notice that TX does not have anything about whether or not the actor caused the situation requiring the choice. 2) No clean hands requirement anywhere in Justification as a defense.
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