Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 18.02 (4th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
October 2016 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; and
(2) harm sought to be avoided was greater than the harm resulting from a violation of the law; and the
(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).
Instruction generally does not apply to crimes that have a statutory necessity defense. Statutory defenses on necessity supersede the common law defense. See State v. Diana, 24 Wn.App. at 913–14 (quoting Section 3.02(1)(b) of the Model Penal Code). Accordingly, before giving WPIC 18.02, the court should determine that (1) neither the criminal code nor other laws defining the offense provide exceptions or defenses dealing with the specific situation involved, and (2) a legislative purpose to exclude the justification claimed does not otherwise appear. State v. Diana, 24 Wn.App. at 914. Finally, the court must determine whether the Legislature, in enacting a specific statutory defense, indicated an intention not to abrogate the common law defense of necessity. Thus, in State v. Kurtz, 178 Wn.2d 466, 309 P.3d 472 (2013), the Washington Supreme Court held that the common law medical necessity defense to charges of possession of marijuana was not abrogated by enactment of the Washington State Medical Use of Marijuana Act. This result was based upon the 2011 amendment to RCW Chapter 69.51A providing that “[n]othing in this chapter establishes the medical necessity or medical appropriateness of cannabis for treating terminal or debilitating medical conditions as defined in RCW 69.51A.010,” which suggested the Legislature did not intend to supplant or abrogate the common law. State v. Kurtz, 178 Wn.2d at 476; RCW 69.51A.005(3).
Several statutes supersede the common law defense of necessity for particular crimes, including:
- • 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. 222, 224–26, 889 P.2d 956 (1995); 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 December 2015.]
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