Choice of Evils – Necessity

Case: The Queen v. Dudley & Stephens, 12 Q.B.D. 273 (1884)

Facts: Δs were lost at sea, with no food or water. They ended up killing one of the crew members, and ate him
to survive. They were picked up and saved 4 days after this by another vessel. If they hadn't killed the boy, they
would not have survived, and the boy was very weak, he would have probably died too.

Holding: This is murder unless it can be justified. Court says that killing out of necessity (self-defense) of
another person to save your own life only is justified when the victim was threatening the Δs life, not if the
victim is innocent. But Court also talks about extreme necessity, and discusses whether it can be justified. But
there is no absolute or unqualified necessity to preserve one's life.
o Can't take innocent life to save 3. rejects the utilitarian view of giving one life to save others. More
retributive - it's just wrong, you can't murder.
o In hindsight, what they did saved lives. Court rejects looking at it in hindsight. Look at it from the time
they made the decision to kill. A rescue boat could have come much sooner, and all 4 would have
survived. Must look at it from perspective of time they made that decision. The lesser evil at the time
was to leave all 4 alive.
o Court ultimately says - we don’t care. From retributivist perspective, just wrong to take an innocent life.
o Distinction of this case with case of mountaineer cutting rope of the other that lost his grip
• Imminent - harm to Δ / inevitable death of victim
• Choice of victim - if they had pulled straws it would be more sympathetic because there was
equal risk; all consented
• Cause of death (gravity vs. death)

Notes:

o Lesser Evils / Choice of Evils

• The harm caused by the justified behavior remains a legally recognized harm that is to be
avoided whenever possible. However, that harm may be outweighed by the need to avoid an
even greater harm or to further a greater societal interest.
 Ex.: Raging forest fire is coming towards a town of 10,000 ppl. Δ burns a corn field
located between forest & town, which serves as a firebreak and saves the town. This is
arson, but he has a complete defense; his action was justified.
• MPC § 3.02. Justification Generally: Choice of Evils
 (1) Conduct that the actor believes to be necessary to avoid harm or evil to himself or to
another is justifiable, provided that:
o (a) the harm or evil sought to be avoided by such conduct is greater than that
sought to be prevented by the law defining the offense charged; and
o (b) neither the Code nor other law defining the offense provides exceptions or
defenses dealing with the specific situation involved; and
o (c) a legislative purpose to exclude the justification claimed does not otherwise
plainly appear.
 (2) when the actor was reckless or negligent in bringing about the situation requiring a
choice of harms or evils or in appraising the necessity for his conduct, the justification
afforded by this Section is unavailable in a prosecution for any offense for which
recklessness or negligence, as the case may be, suffices to establish culpability.
 Commentary. MPC accepts the view that a principle of necessity, properly conceived,
afford a general justification for conduct that would otherwise constitute an offense.
o United States v. Paolello (1991) - Δ had a criminal record, and was convicted of being a convicted felon
in possession of a firearm. Δ had gone to a bar, and got into an argument with another man. That guy
followed him outside, and was threatening him, and he punched Δ's stepson too. Δ saw the guy had a
gun, and so he grabbed it and ran away. He did so because he though the guy might shoot him or his
stepson, and he ran away because he said he was afraid the guy's friends would come after him. When a
policeman confronted him, he dropped the gun and stopped. Lower court failed to give a "justification'
defense instruction. This court held that if Δ's version of the events was to be believed, he would be
justified, so it was error for lower court not to allow the defense.

o United States v. Oakland Cannabis Buyers' Coop (2001) - case about using medical marijuana, where
CA law permitted it, but federal law prohibited. Federal law preempts, but Δ tries to use the necessity
defense. Court concludes that in passing the statute, Congress clearly did not consider marijuana a drug
that has medical benefits, and so is worthy of an exception to the criminal offense.

o Elements of the defense of necessity:

• under unlawful and present threat of death or serious bodily injury
• (clean hands) Δ did not recklessly place himself in the situation where he would be forced to
engage in criminal conduct
• No reasonable legal alternative
• Direct causal relationship between avoiding the harm & the crime inflicted
 Nexus between the 2 has to be close
 Speeding to get kid t the doctor - close nexus
 Taking the gun and robbing a store and giving money to the assailant - not a close nexus
• Court in Paolello doesn't say this, but it's sort of implicit - Δ's harm has to be less than the
avoided harm
• Balancing of harms - but can't conflict with a legislative intent (marijuana case)
 We suspect that when the legislature wrote the statute, there are speaking generally.
Necessity defense is something that although prohibited by criminal code, is ok because
of the context. But we already know the legislature thinks the offense is not a lesser harm
(in balancing) and it already decided that it won't be a defense.

o MPC 3.02 - strictly utilitarian

• (1) Conduct that the actor believes to be necessary to avoid harm or evil to himself or to another
is justifiable, provided that:
 (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be
prevented by the law defining the offense charged; and
 Doesn’t say necessity only applies to avoid certain type of threat - only says that the
crime committed to avoid that threat is a lesser than the conduct to be avoided. Strict
balancing - many jurisdictions use that approach.
 Note: there is no restriction on invoking a defense against homicide.
• (2) when the actor was reckless or negligent in bringing about the situation requiring a choice of
harms or evils or in appraising the necessity for his conduct, the justification afforded by this
Section is unavailable in a prosecution for any offense for which recklessness or negligence, as
the case may be, suffices to establish culpability.
 Similar imperfect clean hands
 If they're reckless or negligence, they lose defense if the offense can be established by
recklessness or negligence. But if offense requires intent, knowledge, then it's mitigated.