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Copyright (c) 2005 University of Cincinnati Law Review
University of Cincinnati Law Review


Summer, 2005

73 U. Cin. L. Rev. 1527


Shaun P. Martin*



The defense of necessity (or "choice of evils") 1 is uniformly viewed as a straightforward, innocuous, and virtually insubstantial legal principle, 2 at least as a matter of legal doctrine. 3 The necessity defense essentially permits an accused to admit the elements of an offense but avoid punishment if her illegal acts were designed to obtain a greater good. 4 A driver may exceed the speed limit to rush an injured person to the hospital. 5 An onlooker is permitted to destroy a home to prevent a fire from spreading. 6 A prisoner may leave a burning jail. 7 A captain may enter an embargoed port in a storm. 8

As these examples suggest, the existence of a defense based upon necessity is almost entirely uncontroversial. 9 It is virtually taken for granted that any society--especially a fair and democratic one--will excuse those violations of its laws that are performed for the advancement of the common good. Courts and commentators thus have almost entirely ignored this longstanding component of Anglo-American jurisprudence and have deemed it to be a largely irrelevant legal principle applicable in only the most freakish of factual settings. 10 The existing literature on the necessity defense similarly attempts to propound a philosophical basis for the existing doctrine 11 without a substantive analysis of either the propriety of the contemporary limitations on the doctrine or the central participation of the jury in the application of the defense. These core components, while perhaps philosophically insubstantial, 12
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