“Necessity” is sometimes used as a defense to certain crimes in North Carolina.

Sometimes things are not what they seem to be.  That is true in life and it is also true in criminal law. Although someone may have done something “wrong”, it doesn’t mean that they didn’t have some sort of justification or excuse for it.  In some cases, it may even have been a legal justification or excuse. What are we talking about?

We are talking about necessity.  Necessity is an affirmative defense that may be used in certain circumstances as a defense, in a criminal trial. In this blog, we will discuss necessity.  Like all our blogs, this is intended for informational purposes only and is not intended as a substitute for the advice and counsel of a criminal defense attorney.

What is necessity?

Necessity applies when asserting that it was appropriate to commit a criminal act in order to prevent a greater harm from occurring.  It acts as a legal justification for the actions of the defendant, and in effect absolves him from the culpability of what he was charged with.

Example of necessity:

• Your child is in the middle of a medical emergency, he can’t breathe and you truly think he is going to die. This is occurring while you are at a pharmacy. You ask for help and nobody helps you, so you jump the counter and grab an inhaler to save your child’s life.
• In this scenario, you would likely prevail on a necessity defense if you were charged with a crime based on your necessary lifesaving actions.

How can I use necessity?

Necessity is not something that can be claimed arbitrarily.  It is an affirmative defense, and if the defense intends to assert it, they must give advanced noticed to the court and the government, prior to trial. Further, the burden is on the defense to prove necessity.

To affectively use necessity as a defense the following must apply:

• The defendant must have reasonably believed that there was an actual and specific threat that required immediate action
• The defendant must have had no realistic alternative to completing the criminal act
• The harm caused by the criminal act must not be greater than the harm avoided
• The defendant did not contribute to or cause the threat

All of these elements must apply, and it is up to the defense to show this in the course of a trial.

Is that defense ever unavailable to me?

Typically, necessity can never be used as a defense in a homicide crime.  The appropriate alternative in those cases may be self-defense, but short of the facts being appropriate for that defense, the law will not justify the intentional killing of another human being.

Legally, you are always allowed to defend yourself, but hiring a lawyer may open up options to you that you were not aware were available.  If you have been charged with a crime, contact us.  Gilles Law handles criminal defense matters in North Carolina and South Carolina.