Necessity & Choice of Evils

Necessity / Choice of Evils: ∆ violated the law to avoid a greater harm.

MPC § 3.02 (and Common Law)

∆ honestly and reasonably believed the violation was necessary to avoid a greater harm.
The harm avoided > the harm caused (objective measure).
Imminent danger requirement (necessity element).
Proportionality (greater-evil element).
Clean hands: if ∆ recklessly or negligently put himself in the predicament, defense is lost.
The legislature must not have foreclosed the necessity choice (e.g., a specific statute that explicitly prohibits the conduct even in the relevant emergency).

∆ is confronted with two options, each evil:
- (1) Violate the literal terms of the criminal law and produce a harmful result, OR
- (2) Comply with the law and produce a greater amount of harm.
∆ is justified in violating the criminal law if option 2 is greater harm.
Pressure must operate on ∆'s mind, not body (compare with duress).
Lawmakers must not have already rejected ∆'s choice.

Courts often build "factor tests" for recurring fact patterns (escapees from prison, drug-running for medical use, civil disobedience).
Necessity instructions are rarely granted—it is the rare ∆ who succeeds.

Cases:

State v. Crawford, 521 A.2d 1193 (Md. 1987) — necessity available where ∆ involuntarily came into possession of a handgun while under attack.