What Is the Necessity Defense?


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The necessity defense, as it is known, is a legal justification for an act that would be criminal in the absence of additional facts. It is an affirmative defense, which involves admitting that you committed the act in question and alleging additional facts that mitigate or defeat criminal culpability. Other affirmative defenses that defendants sometimes invoke include self-defense, duress, and entrapment, to name just a few.

The Necessity Defense

The necessity defense, again, is a justification of your conduct. If the jury finds that – under the circumstances at hand – you were justified in whatever you did it may acquit you on the charges you face. In fact, in some cases, a properly raised necessity defense may result in the prosecution dropping your case before trial.

In the State of Texas, a necessity justification will hold up only if all of the following apply:

  • You believe your conduct was necessary in order to avoid imminent harm.
  • Your action was reasonable within the given circumstances.
  • The benefits associated with your action outweigh the harm caused.

If each of these applies to your case, the necessity defense may be applicable. An example includes hitting and harming another person – but doing so because the other person posed a credible threat to you or someone else’s safety.

The Important Elements of a Necessity Defense

There are several elements of your necessity defense that must be present, including:

  • You must have reasonably believed that you were in imminent danger and that the illegal action you took was immediately necessary in order for you (or someone else) to escape imminent harm. This means that you were in danger at that very moment – not that your action was in reaction to the threat of a future danger. Further, the jury will determine whether your belief was indeed reasonable under the given circumstances. Reasonable here means that reasonable people in similar situations would act in a similar manner.
  • The jury will also carefully consider the harm caused by your illegal action in relation to the harm you avoided by engaging in the illegal action. Ultimately, the harm caused should not exceed the harm avoided.

Exceptions to the Necessity Defense

There are important exceptions to the necessity defense. For instance, having an economic need to steal does not rise to the level of a necessity defense. Texas offers financial assistance to people in need and other options, stealing necessary consumer goods is not defensible in this capacity. Further, if there is a law that specifically excludes your action in the given circumstances, then the necessity defense cannot be successfully invoked.

Facing Criminal Charges? Reach Out to an Experienced Lawyer Today

Criminal charges are serious charges that require professional legal attention. Attorney Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, has a long, successful track record of helping clients like you bring strong defenses in support of favorable legal resolutions. We are committed to helping you, so please do not hesitate to contact or call us at 254-501-4040 for more information today.

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