WPIC 18.02 Necessity—Defense
11 WAPRAC WPIC 18.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 18.02 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
December 2021 Update
Part IV. Defenses
WPIC CHAPTER 18. Miscellaneous Defenses
WPIC 18.02 Necessity—Defense
Necessity is a defense to a charge of (fill in crime) if
(1) the defendant reasonably believed the commission of the crime was necessary to avoid or minimize a harm;
(2) harm sought to be avoided was greater than the harm resulting from a violation of the law;
(3) the threatened harm was not brought about by the defendant; and
(4) no reasonable legal alternative existed.
The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge].
NOTE ON USE
Use in every case in which the common law defense of necessity is asserted and there is an adequate factual and legal basis. Do not use when a statute, or case law, provides exceptions or defenses dealing with the specific situation involved. See the Comment below.
For certain medical necessity cases, paragraph (4) may need to be revised to add the phrase “equally effective.” See discussion in the Comment below.
Availability of common law defense. The common law defense of necessity was recognized in State v. Diana, 24 Wn.App. 908, 604 P.2d 1312 (1979). “[N]ecessity is available as a defense when the physical forces of nature or the pressure of circumstances cause the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from a violation of the law.” State v. Diana, 24 Wn.App. at 913. The defense is not available when the “physical forces of nature or the compelling circumstance have been brought about by the accused or where a legal alternative is available to the accused.” State v. Diana, 24 Wn.App. at 913–14.
It was observed in State v. Turner, 42 Wn.App. 242, 247, 711 P.2d 353 (1985) that, in contrast to a duress defense (properly allowable in that case), a necessity defense would require that the pressures came “from the physical forces of nature rather than from other human beings.” Subsequent cases, however, have not drawn this distinction. See, for example, State v. Jeffrey, 77 Wn.App. 222, 889 P.2d 956 (1995) and State v. Stockton, 91 Wn.App. 35, 955 P.2d 805 (1998) (both cases involving charges of unlawful possession of a firearm with a necessity defense based upon human pressures).
Evidence supporting the necessity instruction can come from any source in the record. State v. Fisher, 185 Wn.2d 836, 849, 374 P.3d 1185 (2016).
Instruction may apply to crimes that have a statutory necessity defense. The common law defense of necessity remains available even when a statutory defense of necessity exists unless there is “clear evidence of legislative intent” to supersede the common law, or the statutory defense is “so inconsistent and repugnant to the prior common law that both cannot simultaneously be in force.” State v. Kurtz, 178 Wn.2d 466, 472, 309 P.3d 472 (2013).
Kurtz addressed the common law medical necessity defense for possession of marijuana. The Washington Supreme Court held that this common law defense was not clearly abrogated by or inconsistent with a more recent statutory defense, the Washington State Medical Use of Marijuana Act; RCW 69.51A.005(3).
Kurtz explained, “the relevant question is whether the common law and statute are inconsistent or the legislature clearly intended to deviate from the common law. Where, as here, there was no statement in the statute expressing such intent, and no inconsistencies between the two, we hold that the common law defense of medical necessity continues to be an available defense if there is evidence to support it.” State v. Kurtz, 178 Wn.2d at 477.
Prior to Kurtz, some courts had held that any statutory necessity defense would supersede a common law defense. See State v. Diana, 24 Wn.App. at 913–14, Following Kurtz, courts should not assume a statutory necessity defense supersedes the common law defense.
Other statutory necessity defenses include:
- • Bail jumping: RCW 9A.76.170(2); WPIC 19.16 (Escape—First and Second Degree—Unforeseen Circumstances—Defense);
- • Escape, first and second degree: RCW 9A.76.110(2) and 9A.76.120(2); WPIC 19.16 (Escape—First and Second Degree—Unforeseen Circumstances—Defense);
- • Eluding: RCW 46.61.024(2)(a); WPIC 94.10 (Attempting to Elude a Police Vehicle—Reasonable Belief that the Pursuer is Not a Police Officer—Defense);
- • Medical marijuana, qualifying patient defense: RCW 69.51A.040; WPIC 52.10 (Marijuana—Qualifying Patient—Defense);
- • Medical marijuana, designated provider defense: RCW 69.51A.040; WPIC 52.11 (Marijuana—Designated Provider—Defense).
Practitioners should consult the applicable statutes, including the most recent legislative enactments for any new defenses, before using WPIC 18.02.
Instruction does not apply to defending property from wildlife damage. When the defendant kills or injures wildlife in order to protect property, the jury should be instructed with instructions based on State v. Burk, 114 Wash. 370, 195 P. 16 (1921) and RCW 77.36.030, rather than with the pattern instruction on necessity. See State v. Vander Houwen, 163 Wn.2d 25, 177 P.3d 93 (2008) (holding that the constitutional right to protect property requires the State to bear the burden of proof).
Burden of proof. “[T]he defendant must prove by a preponderance of the evidence that (1) he or she reasonably believed the commission of the crime was necessary to avoid or minimize a harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, and (3) no legal alternative existed.” State v. Gallegos, 73 Wn.App. 644, 651, 871 P.2d 621 (1994); State v. Bailey, 77 Wn.App. 732, 893 P.2d 681 (1995).
“Reasonable legal alternative.” The instruction's paragraph (4) uses the term “reasonable legal alternative.” The reasonableness requirement is based on State v. Jeffrey, 77 Wn.App. at 224–26; see also State v. Parker, 127 Wn.App. 352, 354–55, 110 P.3d 1152 (2005) (citing Jeffrey with approval).
“Equally effective.” For medical necessity cases, the term “equally effective” may need to be added to the instruction's paragraph (4). See State v. Pittman, 88 Wn.App. 188, 943 P.2d 713 (1997) (in cases for which a defense of medical necessity is still available, the defendant will be required to show that there is no equally effective legal drug).
[Current as of March 2019.]
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