Necessity Defense
Easy for any juror to understand
The Necessity Defense
The ‘Necessity Defense’ is recognized by states and the Federal Government in both criminal and civil law. It is a simple concept any juror can understand easily.
The Cornell School of Law Wex Definition team states that Federal Rules of Civil Procedure Rule 56 allows a defendant to request a summary judgment (throw the case out of court) on the basis of ‘affirmative defense.’ (Cornell’s Wex Definition Team, last updated June 2022, accessed Feb 14, 2024).
In an ’affirmative’ defense case, the perpetrator acknowledges the unlawful act but demonstrates that the act was justified by being either unavoidable or less harmful than the lack of action. According to Cornell’s Definition Team, the defendant needs to simply introduce “… evidence, which, if found credible, will negate criminal liability, or civil liability, even if it is proven that the defendant committed the alleged act.”
“An actor acting out of necessity defense chooses the better of two unavoidable evils.”
Cornell's team states that under this defense, the defendant is “justified in the particular conduct because it will prevent the occurrence of a harm that is more serious.”
To clarify this concept, it stands to reason that a “particular conduct” does not become a legal act.
Furthermore, Cornell’s definition team states that “raising an affirmative defense does not prevent a party from also raising other defenses.”
The Cornell’s legal team noted that ‘entrapment’ is another justification defense that can be pleaded by a defendant when he is being set up for the crime, which setup usually occurs by law enforcement.
The defendant is required to provide the evidence for the possible harm that was purportedly avoided through the unlawful act, however it is the burden of the prosecution to prove “intent” of the defendant.
The prosecutor has the burden to prove intent, the ‘guilty mind” Establishing the guilt (mens rea) starts out with the intent behind the crime. The Cornell’s legal team provides an example of instructions that might be given to a jury in the case of a necessity affirmative defense. The instructions show that the defendant does not need to ‘prove’ the purported harm would occur with certainty, but that, under the circumstances, a 'reasonable' person would believe that the harm could occur if action were not taken.
One of the elements of the crime required, according to Cornell's Team is the act (actus reus).
The criminal must have committed an “act’ and the prosecutor has the burden of proof. It seems obvious, but the Cornell’s legal team mentions that the prosecutor has to show that the unlawful act actually occurred: a ‘physical act of omission’ or an actual ‘physical act’ is needed to prosecute someone.
According to this ‘definition’ the prosecution cannot invoke a criminal illegality if there is no “act.”
As I understand the “physical act” factor and why it is mentioned here is because the prosecutor has to prove the act itself was committed by the defendant. This seems rather obvious but still the ‘act’ factor must be an important element since it is given a Latin name. It may mean that if an individual shoots someone in Chicago, a prosecutor cannot set up a dragnet and arrest someone on the basis of this person being the brother of the shooter.
In the entrapment defense Cornell's mentions two essential elements to be considered:
"The defendant's lack of proclivity to conduct in crime. and "The government's inducement of the crime."
One case that ended up an important precedent in local and Federal law (and was never contested) was that of a lady whose home was raided on a gun-ownership warrant, and was arrested for possessing pornography instead. The higher court found that the warrant was not valid.
I believe that all the President Trump’s cases, including the document cases, as well as the January 6 cases can be pleaded as 'necessity' defenses.
Their primary defense should be an affirmative necessity defense: Joe Biden had to be prevented from becoming president as his compromised status was a matter of public knowledge; Biden himself had bragged publicly about having predicated one billion dollars in loan in exchange for firing of a prosecutor in Ukraine. At least one published media had reported of Joe Biden raking cash from businesses in Ukraine so brazenly that he had came to be known by locals as “the American Gangster.”
The document case can clearly pleaded as necessity defense. When a general of the United States talks on the phone with our nation's enemy behind the back of the United States Commander in Chief, it is reasonable to believe that the sensitive national security documents might not be safe if left in those purported treasonous hands, and in the hands of others that showed dubious loyalty to the United States of America.
According to the 'elements' of the defense expounded by the Cornell's Team, above, President Trump does not have to prove that these individuals were treasonous, only that their actions caused a reasonable person to believe they were such, and that his intent was to protect the nation.
Trump could not forget what happened to the "Brazilian Trump" at the hands of treasonous factions inside his country: from 100 million votes, he "received" less than half.
Bolsonaro lost the election to a convicted criminal who had already sold the country in a previous Communist stint.
"Who will be that insane to attempt fraud? " Well, a lot of people are 'insane' apparently, let’s all not forget!