November 20 Notes and Briefs

November 20 Notes and Briefs - November 20, 2008 5....

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November 20, 2008 5. Necessity (“Choice of Evils”) a. General Principles Nelson v. State Supreme Court of Alaska, 1979 Law: A defence exists only when natural forces create a situation wherein it becomes necessary for a person to violate the law in order to avoid a greater evil to himself or his property. The harm which is to be avoided must be the greater harm and it must be immediate and dire. Where a reasonable alternative other than violating the law is available in order to avoid the harm the defence of necessity is not applicable. Three elements to the defence: 1. The act charged must have been done to prevent a significant evil 2. There must have been no adequate alternative 3. The harm caused must not have been disproportionate to the harm avoided. Facts: N’s truck got stuck at the side of the road. He went to a place to get equipment to take it out, but that didn’t work. C came and they went and got a front loader to get the cars out, it got Curly’s out, but not his. They went to sleep and Highway patrol work them up and put them under a citizen’s arrest for reckless destruction of personal property and joyriding. Reasoning: N’s fears about damage to his truck roof were no justification for his appropriation of sophisticated and expensive equipment. Issue: Whether the jury was properly instructed on the defence of necessity. Procedure: Convicted of destruction of personal property and joyriding. Holding: Affirmed. Notes from the Case: SEE OUTLINE Necessity: Model Penal Code Codification of a Principle of Necessity: A general justification for conduct that would otherwise constitute an offence. It reflects the judgement that such a qualification on criminal
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November 20 Notes and Briefs - November 20, 2008 5....

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