U.S. flag

An official website of the United States government, Department of Justice.

NCJRS Virtual Library

The Virtual Library houses over 235,000 criminal justice resources, including all known OJP works.
Click here to search the NCJRS Virtual Library

Necessity Defined - A New Role in the Criminal Defense System

NCJ Number
UCLA Law Review Volume: 29 Issue: 2 Dated: (December 1981) Pages: 409-446
M R Conde
Date Published
38 pages
This comment examines the theoretical foundations of the criminal defense system and the role that the necessity defense plays within it and proposes an alternative model of necessity.
The principle of necessity, that the nominal criminal act may be the proper act under certain circumstances, is an accepted concept within the criminal legal system. An example of this type of defense would involve a case in which a driver on a narrow road hits a hiker in order to avoid driving off a cliff. Although the ultimate theoretical basis of necessity remains the subject of dispute, the contexts in which it has been successfully applied reflect certain similarities. Usually the actor faces an immediate physical threat or danger and to avoid this danger, engages in a criminal act. The law must then determine whether or not to punish the individual. A restructuring of the necessity defense is desirable. The proposed model requires that there be a clear social preference for the result produced pursuant to the criminal act over the result of the subsequent act. The model of necessity also limits the extent to which the wedge principle can operate. The wedge principle expresses the view that exceptions to the law work as dangerous precedents undermining the legal system; therefore, the criminal act must never be sanctioned, no matter how desirable the consequence. The third proposed requirement, limiting the application of the defense to those occasions where the least costly alternative is employed, minimizes potential abuse of the defense. Defendants must demonstrate either the lack of any other alternative to the criminal act or evidence supporting the conclusion that it was the least costly alternative. The comment provides 173 footnotes.


No download available