• The common law defense of necessity has evolved over the years and is often referred to as the “choice of evils” defense. … [T]he central element involves the emergency nature of the situation. That is, under the force of extreme circumstances, conduct that would otherwise constitute a crime is justifiable and not criminal because of the greater harm which the illegal act seeks to prevent.
• The underlying rationale is that to impose punishment upon a person who acted reasonably to avoid the greater harm serves neither to rehabilitate that person nor to deter others presented with a similar situation.
•The Indiana Supreme Court has noted that necessity is an affirmative defense and that an affirmative defense “admits all the elements of the crime but proves circumstances which excuse the defendant from culpability.”
• In order to prevail on a claim of necessity, the defendant must show (1) the act charged as criminal must have been done to prevent a significant evil, (2) there must have been no adequate alternative to the commission of the act, (3) the harm caused by the act must not be disproportionate to the harm avoided, (4) the accused must entertain a good faith belief that his act was necessary to prevent greater harm, (5) such belief must be objectively reasonable under all the circumstances, and (6) the accused must not have substantially contributed to the creation of the emergency.
Overcoming the defense
• In order to negate a claim of necessity, the State must disprove at least one element of the defense beyond a reasonable doubt.
• The State may refute a claim of the defense of necessity by direct rebuttal, or by relying upon the sufficiency of the evidence in its case-in-chief.
Deciding whether a claim of necessity has been disproved
• The decision whether a claim of necessity has been disproved is entrusted to the fact-finder.
Examples of failed claims of necessity
• The defendant claimed that he unlawfully carried a handgun to school in order to protect himself from threatened retaliation by members of his former gang. However, the defendant did not seek help or advice from his parents, nor did the defendant inform police of the death threat made against him, nor did the defendant request an excused absence from school on the day after he received the threat. Reasonable alternatives to carrying a handgun to school were available to the defendant, and therefore, the defendant’s claim of necessity failed.
See Dozier v. State, 709 N.E.2d 27, 30-31 (Ind. Ct. App. 1999)(“When balancing the potential risks involved in this case[,] it is apparent to us that any one of the alternatives referenced above would have been more adequate than taking a loaded gun to school.”)
• Here, the State established that [the defendant’s] commission of the confinement and battery were unnecessary. Simply put, [the defendant] could have stopped the car and let [the victim] get out as she requested, or [the defendant] himself could have gotten out of the car. [The defendant] did neither. Consequently, [the defendant’s] claim of necessity fails.