§22.02 GENERAL RULES

• Jurisdiction: North Carolina

§22.02. General Rules

Necessity may or may not have been a common law defense in England,¹⁹ but it is a part of the common law tradition of the United States.²⁰ Despite this, the defense has no single accepted definition and, until the Model Penal Code set out a specific defense to deal with the topic, few state criminal codes expressly included a necessity defense, leaving the matter to courts to resolve on a common law basis. Therefore, at any given time in history it was exceedingly difficult to determine the standing and scope of the defense in any particular jurisdiction.²¹

Today, according to one source, 45 jurisdictions recognize some sort of necessity defense.²² However, the differences among them are substantial. Some of the statutes define "necessity" in broad and general terms; others are much more specific in their descriptions. In states without a statutory defense, the vague contours of the common law presumably apply.²³

The parameters of the defense may be deduced from its purpose as described in the preceding chapter section. Subject to three potential limitations mentioned below, very generally speaking, a person is justified in violating a criminal law if the following six conditions are met.

First, the actor must reasonably believe he is faced with "a clear and imminent danger."²⁴ For example, in United States v. Paolello,²⁵ X, unjustifiably fired a weapon in the air, threatening P, a convicted felon. To protect himself, P wrested the gun from X and ran away with it. P was prosecuted for violation of a statute that made it an offense for a convicted felon to possess a firearm. Based on these facts, however, P was entitled to an instruction on the necessity defense, because the danger to him was clear and imminent. In contrast, in Commonwealth v. Leno,²⁶ L participated in a needle exchange program run by AIDS activists, in which he and others furnished clean needles to drug addicts in order to reduce the spread of the then-deadly disease. L was charged with possession and distribution of hypodermic needles without a prescription. The Supreme Judicial Court of Massachusetts held that L was not entitled to a jury instruction on the defense necessity because the harm — spread of AIDS — was not imminent in any given case in which the needles were exchanged.

Second, the defendant must expect, as a reasonable person, that his action will be effective in abating the danger that he seeks to avoid, i.e., there must be a direct causal relationship between his action and the harm to be averted.²⁷ For example, an inmate who flees confinement because of a raging prison fire, has chosen a path that will directly save his life.

Third, there must be no effective legal way to avert the harm.²⁸ For example, in Nelson v. State,²⁹ N drove his truck onto a side road off the highway, where it became stuck in a marsh. After spending an hour trying to free the vehicle, N and a friend went to a nearby Highway Department Yard where they took a dump truck without permission, and unsuccessfully used it to try to pull N's vehicle out of the mud, thereby damaging the dump truck. N was prosecuted for reckless destruction of the Highway Department's property and of driving the truck without consent. The court held that the facts did not support a defense of necessity, in part because N had lawful alternatives in his situation—on several occasions strangers offered to help pull the vehicle out of the marsh or by calling for a tow truck or the police.

Fourth, the harm that the defendant will cause by violating the law must be less serious than the harm that he seeks to avoid.³⁰ Two features of this lesser-harm principle must be understood. First, in balancing the harms, the defendant's actions "should be weighed against the harm reasonably foreseeable at the...