What Is The Necessity Defense, And What Are Its Limits?

| Educate!

Above Photo: Delta 5 members in front of courthouse by Delta 5 Trial

It’s a defense that goes back centuries, but has recently been mentioned in cases involving environmental activists.

  • Jon

    This analysis, while useful, conforms to the legal parameters of the empire’s legal system. Defendants, and their attorneys can politely insist that being denied the necessity defense to at least be presented constitutes a kangaroo court and then refuse to participate, going mute from that point forward. Then let the jury decide. And, of course, there is jury nullification, wherein the jury can refuse the directions from the judge and render their verdict.

  • kevinzeese

    When defendant raises a necessity defense they make a proffer to the judge, i.e. here is what we will show with our evidence. The judge then decides if the defense can go forward and present evidence. If the judge decides that evidence of necessity cannot be presented then I do not see how you get the evidence before the jury to decide. You can call it a kangaroo court and appeal the judges decision but that still does not get the information in front of the jury.

    If a judge wants to refuse a necessity defense they can do so pretty easily. A court can always say that the defendants actions were not a necessity because they cold have done something other than break the law. They could petition the government. They can write their elected representatives. They can organize a legal protest. They can organize a boycott, etc. I don’t think these are legitimate claims because people do not risk arrest until after trying many alternatives and finding them fruitless. But, most judges do not think they way I (we) do. And when you get to appeals courts they are even further removed from how people think and the experiences we have with the power structure.

    Jury nullification is also tricky to present. Jurors are not told they can nullify. Lawyers are not allowed to tell the jury they can nullify and disregard the law to find a defendant not guilty. Even if there are people outside the courthouse handing out literature about jury nullification they risk getting arrested for jury tampering. So, a jury needs to be informed on its own before going into the courthouse.

    Since it takes a unanimous verdict all a defendant needs is one juror who refuses to convict. That results in a hung jury and then the prosecutor must decide whether to retry the case.

    The court system is designed to keep jurors ignorant of their powers to refuse to convict.

  • Jon

    “The court system is designed to keep jurors ignorant of their powers to refuse to convict.” That validates my point.
    What I am saying is for those courageous enough to try it, refuse to be bound by courtroom legalities, but politely and respectfully. “Break on through to the other side” as Jim Morrison sang. I am saying that if a judge refuses to allow the necessity defense, the defendant can simply state “This IS my defense. If you do not permit my true defense, I will no longer participate in the proceedings and will remain mute, as will my attorney.
    On the matter of jury nullification, it would be wise for our side to popularize the concept widely but not in reference to a specific trial, for reasons you cite.