The Defense of Necessity
A major theme underlying Tennessee’s criminal code is that it is designed to protect Tennesseans from harm, especially serious harm such as death or serious bodily injury. For example, Tennessee’s criminal code would be doing Tennesseans a disservice if it were to punish them with a criminal charge, such as assault, for taking an action that ordinarily may be a criminal act but in the instant case actually operates to protect someone from even greater harm. For example, it would ordinarily be a crime to shove someone out a window, but such an act may not be criminal if it was done in order to get that person out of a burning house. Thus, Tennessee law contains the doctrine of necessity in order to distinguish criminal acts from those helpful acts society wants to encourage.
For a person to assert the defense of necessity, he or she must (1) reasonably believe that the conduct is necessary to avoid imminent harm, and (2) society’s interest in avoiding the harm must clearly outweigh the harm sought to be prevented by the statute allegedly violated. For example, a person could claim necessity as a defense if they used a baseball bat to stop someone from kidnapping another person’s child. That person could not, however, claim necessity if they used a baseball bat to stop an offender from running off with another person’s taco. Simply put, the actions of the person claiming necessity must be designed to prevent a greater harm than that person actually commits against someone else.
Claims of necessity often present close cases that are not as easily distinguished as the kidnapping-taco dichotomy above. Often necessity cases involve the use of deadly force that has poses the threat of serious charges, such as homicide, to the defendant. Defendants in such cases need to rely on the advice of experienced criminal defense lawyers in order to ensure that the defense of necessity is appropriately and effectively presented.
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