lesser of two evils (defense) | Definition

Doc's CJ Glossary by Adam J. McKee


Course: Introduction / Criminal Law

The lesser of two evils defense is a legal defense based on the idea that a small harm can sometimes be necessary to prevent a greater harm from occurring; another name for the necessity defense.

The lesser of two evils defense, also known as the necessity defense, is a legal defense that can be raised in a criminal case where the defendant committed an illegal act to prevent greater harm from occurring. The defense is based on the idea that, in some cases, minor harm can be justifiable to prevent more significant harm.

The Model Penal Code (MPC), which is a comprehensive code that sets forth principles for criminal liability and punishment, recognizes the necessity defense. According to the MPC, conduct that would otherwise be considered criminal is justified when it is necessary to avoid harm that is greater than the harm that the conduct causes.

In order to successfully raise the necessity defense, the defendant must demonstrate that they faced a clear and imminent danger, that they had no reasonable alternative, and that the harm they sought to prevent was greater than the harm they caused. Additionally, the harm that the defendant sought to prevent must be of a greater magnitude than the harm caused by the defendant’s actions.

For example, if someone breaks into a car to steal a set of keys to prevent a drunk driver from getting behind the wheel and potentially causing a fatal accident, the lesser of two evils defense may be raised. The defendant would need to show that they believed that the driver was intoxicated and posed an imminent danger, that there were no other reasonable alternatives available to prevent the driver from getting behind the wheel, and that the harm caused by breaking into the car was less than the harm that could have been caused by the drunk driving.

However, it is important to note that the necessity defense is not available in all cases and is generally only applicable in situations where the defendant was acting to prevent an imminent harm. Additionally, the defense may not be available if the harm that the defendant caused was not directly related to the harm they sought to prevent.

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Last Modified: 04/10/2023


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