Instruction 9.240, Criminal Model Jury Instructions for Use in the District Court

NECESSITY

“Necessity is the defense one pleads when circumstances force one to perform a criminal act.

Duress, or coercion, applies when human beings force one to act.” Commonwealth v. Garuti, 23

Mass. App. Ct. 561, 564 (1987), quoting from United States v. Nolan, 700 F.2d 479, 484 n.1 (9th Cir.),

cert. denied, 462 U.S. 1123 (1983).

For a defendant to be entitled to necessity defense instruction, he or she must present some evidence

on each of the four underlying conditions of the defense: (1) a clear and imminent danger, not one

which is debatable or speculative; (2) a reasonable expectation that his or her action will be effective

as the direct cause of abating the danger; (3) there is no legal alternative which will be effective in

abating the danger; and (4) the Legislature has not acted to preclude the defense by a clear and

deliberate choice regarding the values at issue. If the defendant satisfies these foundational

conditions, the burden is then on the commonwealth to prove beyond a reasonable doubt the absence

of necessity. Commonwealth v. Magadini, 474 Mass. 593, 597 (2016).

In some situations, necessity may excuse a person’s

committing what would otherwise be a criminal offense. A

person is allowed to commit what would otherwise be a criminal

offense if the person acts out of necessity. The rule of necessity

exists because it would be unjust and contrary to public policy

to impose criminal liability on a person if the harm that results

from his breaking the law is significantly less than the harm that

would result from his complying with the law in that particular

situation.

If evidence of necessity is present, the Commonwealth

must prove beyond a reasonable doubt that the defendant did

not act out of necessity. In other words, if you have a

reasonable doubt whether or not the defendant acted out of

necessity, your verdict must be not guilty.

To prove that the defendant did not act out of necessity,

the Commonwealth must prove one of the following three things

beyond a reasonable doubt:

First: That the defendant was not faced with a clear and

imminent danger, but rather one that was debatable or

speculative; or

Second: That the defendant did not reasonably expect that

his (her) actions would be effective in directly reducing or

eliminating the danger; or

Third: That the defendant had a reasonable legal

alternative which would have been effective in reducing or

eliminating the danger,

You may not find the defendant guilty unless the

Commonwealth proved beyond a reasonable doubt that the

defendant did in fact commit the offense, and also proved

beyond a reasonable doubt that one or more of those three

factors were absent and therefore the defendant did not act out

of necessity.