Nelson v. State

597 P.2d 977 (Ak. 1979).

Convicted of reckless destruction of personal property and joyriding


Is the jury instruction for necessity supposed to be objective or subjective?


Necessity requires:

  1. The illegal action was done to prevent a significant evil
  2. There must have been no adequate alternatives
  3. and the harm caused must not have been disproportionate to the harm avoided.


There was an error in the instruction but not in the application of the facts. Affirmed.


Defendant had gotten stuck on a side road and was afraid of his truck tipping. After hours, several people had offered rides, help to pull, and to telephone others who could be of assistance. Instead, the defendant waited for someone to open the heavy machinery to request help. When no aid came, they used the machinery and ended up getting it stuck as well. Tired, (after twelve hours of work) the slept in the truck and in a tent. When they woke up, they were placed under citizens arrest for the crimes committed.


The test is to be objective but can have a subjective element of it. However, even if there was a mistake in the jury instruction, it did not matter because he would not have been successful. The situation was not dire for the harm they were trying to avoid (had waited hours and the truck still had not tipped). They had other alternatives by accepting rides, calling appropriate people for help, etc. And the harm they caused was worse than the harm that could have been avoided (damaged the vehicles and got them stuck too).

Additional Notes

The reason why necessity works is because the purpose of it is to alleviate a harm. Therefore, there can be nothing wrong, because now there was no harm.

We do need to look at a subjective part, examining what the defendant would have thought at at the time, given the circumstances. However, they still fail using that test.

MPC 3.02
  • Actor believes its necessary to avoid evil (Subjective: Defendant’s belief)
  • Harm sought to be avoided is greater than that sought to be prevented by the law defining the offense (Balance of harm: Damage of vehicle v. damage of another’s vehicle after stealing it)
  • No specific exception to necessity defense in the statute
  • No other specific exception to necessity by legislative intent.

For this case, there would have been no defense under the MPC. However, not many states have adopted this approach (3 states).


Limitations on using this defense.

  • The actor must believe his conduct is necessary to avoid an evil.
  • The necessity must be caused by the actor to avoid an evil or harm greater than the evil or harm to be avoided by the law defining the offense charged.
  • Balancing of evils is not committed to the private judgement of the actor: to be determined at trial.
  • Can’t succeed if competing

Civil Disobedience

United States v. Schoon

971 F.2d 193 ( 9th Cir. 1991).

Convicted for obstructing activities of the IRS and failing to comply with a federal police officer.


Can those who are acting in indirect civil disobedience invoke a necessity defense?


Necessity requires:

  1. Faced with a choice of evils and chose the lesser evil
  2. Acted to prevent imminent harm
  3. Reasonably anticipated a direct causal relationship between their conduct and the harm to be averted
  4. There were no legal alternatives to violating the law.


Necessity defense is inapplicable to cases involving indirect civil disobedience. Affirmed.


Defendant and others went to IRS to protest the US tax involvement in El Salvador, kept the IRS from doing their job and created a mess of the place. They refused to leave when told to by police and were arrested.


There is a possibility that imminent harm of the test can be met, however, none of the other prongs are available for any indirect civil disobedience case.

Indirect civil disobedience means to violate a law that is not the object the protest (i.e. violating a law of obstruction to protest El Salvador tax involvement). Direct civil disobedience is violating a law that is directly related to the protesting actions (i.e. think Rosa Parks sitting on the bus where she was not supposed to sit according to the law).

First, the first prong there is an imbalance of harm. The existence of a law does not constitute a harm because it is too insubstantial to be legally cognizable.

Second, there is no causal relationship because the act alone is unlikely to abate the evil. Here, obstructing the IRS is not going to solve problems in El Salvador.

Third, there are other legal alternatives. Go to Congress to complain, they are the ones who fix things.

Additional Notes

Fails three of the four elements every single time of “indirect” civil disobedience. It also fails often for “direct” civil disobedience.

  • It fails the harm because there is nothing wrong with a lawful policy.
  • Fails the causal relationship because it is unlikely to solve the problem.
  • Finally, fails the legal alternatives because this needs to be done in a different matter and needs to be done by going to congress.

How do these steps apply to direct civil disobedience?

  • Harm trying to change? (Nothing wrong with sitting at a lunch counter, trying to prevent greater discrimination)
  • Prevent imminent harm? (Currently segregated, the harm is currently ongoing)
  • Causal relationship? (Sitting at the counter is directly related to the harm and can create a change i.e. desegregate the restaurant by desegregating the restaurant).
  • Legal alternatives? (The arguments are not likely to make it to Congress)

Defense to Murder?

The Queen v. Dudley and Stephens

14 A.B.D. 273 (1884).

Charged for Murder


Whether necessity is a defense here?


No, can’t use the defense.


See Principles of Punishment Article.


They looked towards cases to establish precedent. Lord Hale is saying that you can’t use necessity. Brother Stephen in Holmes case says that you can’t use necessity (sailors threw passengers overboard to keep ship from sinking). Lord Bacon disagrees saying that a person can steal to abate hunger. They rely mostly on Brother Stephen.

Here, this is not allowed. Why?

  1. Preserving life is usually one of a duty (i.e. war)
  2. If allowed, permits a legal cloak for an atrocious crime
  3. Reality of situation: Who would decide who dies?

Yes, we need to set up standards that reflect moral law. Here, we are never going to say that it is ever okay to kill someone in this way. This is retributive.

The MPC doesn’t make a limitation for Murder. It is possible to argue that saving 3 people is better than saving 1 or none survive. Controversial but that’s the way it is (Balance of harm).

Look at the Trolley Problem

  • Hypothetical 1 – Heading towards 5, change it to 1?
    • Under the common law approach, you cannot change the track from the 5 to the 1.
    • Under the MPC approach, you can change the track from the 5 to the 1.
  • Hypothetical 2 – Heading towards 1, let it be?
    • Under common law approach, you need to let it be.
    • Under MPC, you can let it be.
  • Hypothetical 3 – Pushing obese person to stop the train?
    • Under common law approach, you let it be.
    • Under MPC, you can push the person to stop the train
  • Hypothetical 4 – Kill a person to harvest their organs to save 5 people?
    • Same approach is Hypothetical 1.

Ultimately, this outlines the difference between utilitarian and retributive theories.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.