#17105 - Necessity Mpc And Non Mpc

NECESSITY - Justification

Rarely used because difficult to win, use as a last resort
Argument: I committed this crime because I was avoiding a greater evil/greater harm; crime was the lesser evil of the two choices

Common Law	MPC (3.02)
D chooses lesser evil Imminent threat Not allowed in homicide cases Not allowed in economic necessity cases (starving children) Some places require that the emergency was created by natural, not human forces Legislature must not have decided differently (medical marijuana, needle sharing - medical necessity cases) Defendant cannot have created the emergency	Harm avoided greater (in fact, not in belief) than harm committed No imminent threat required, but must believe necessary Allowed in homicide cases Allowed in economic necessity cases Emergency does not have to be natural force Legislature must not have decided differently MPC 3.02(1)(b)(c) If D recklessly/negligently created the situation and if reckless/negligent crime > no defense 3.02(2) TEXT: 3.02(1) Conduct which D believes is necessary to avoid harm or evil is justified if Harm or evil sought to be avoided is greater than crime committed AND Code or other law defining the offense do not provide exceptions or defenses dealing w/ the specific situation AND Legislative purpose to exclude the justification is not apparent 3.02(2) if actor was reckless or negligence in creating the situation requiring the choice of evils, no justification when recklessness or negligence suffices to establish culpability

D chooses lesser evil
Imminent threat
Not allowed in homicide cases
Not allowed in economic necessity cases (starving children)
Some places require that the emergency was created by natural, not human forces
Legislature must not have decided differently (medical marijuana, needle sharing - medical necessity cases)
Defendant cannot have created the emergency

Harm avoided greater (in fact, not in belief) than harm committed
No imminent threat required, but must believe necessary
Allowed in homicide cases
Allowed in economic necessity cases
Emergency does not have to be natural force
Legislature must not have decided differently MPC 3.02(1)(b)(c)
If D recklessly/negligently created the situation and if reckless/negligent crime > no defense 3.02(2)

TEXT:

3.02(1) Conduct which D believes is necessary to avoid harm or evil is justified if

Harm or evil sought to be avoided is greater than crime committed AND
Code or other law defining the offense do not provide exceptions or defenses dealing w/ the specific situation AND
Legislative purpose to exclude the justification is not apparent

3.02(2) if actor was reckless or negligence in creating the situation requiring the choice of evils, no justification when recklessness or negligence suffices to establish culpability

ARGUMENTS FOR BALANCING THE EVILS

Defense argument:

Harm avoided is great - list facts (harm to defendant, harm to society)
(if in CL) don't characterize action as addressing economic necessity, but physical health

Government counters:

Don't want vigilante justice
Separation of powers (legislature didn't make a separate defense, court should not recognize; legislature would have made a separate defense if they thought this was important)
- Def: if legislature had known or contemplated, would have allowed me to do this
***Slippery slope problem/utilitarian concern/rule of law/totality of harm concern
- If allow this necessity defense, totality of harm in society greater than harm averted
  - Lots of people would break the law in the same way D did (homeless sleep in vestibules)>engender chaos and diminish rule of law
- Look at totality of social harm from allowing this defense

Def comeback:

Narrow necessity defense to these specific circumstances, so that totality of social harm is much smaller
- Ex. Narrow necessity defense to only when weather is cold and no shelters available

Short Summary

Common Law	MPC 3.02
Evil avoided is greater than evil caused (whether greater in fact or in belief depends on the statute)	Conduct which actor believes (subj) is necessary to avoid a harm is justifiable IF evil avoided is greater than (in fact, not belief) evil caused
Imminent threat	No imminence; but must believe conduct is necessary
Defendant did not create the emergency	If D created emergency recklessly negligently, no defense in reckless/ negligent crime 3.02(2)
Legislative has not decided differently	Legislative has not decided differently 3.02 (1)(b)(c)
Defense not allowed for homicide or econ necessity	Defense allowed for homicide or econ necessity
Some jx require emergency created by natural force (not human)	Emergency can be man-made or natural

Gov arguments: (D says narrow defense to the specific circumstances – decrease totality of social harm)

Separation of powers: legislature did not make...

#17105 - Necessity Mpc And Non Mpc - Criminal Law

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