CR07-301                   06/14/12

NECESSITY DEFENSE

            The defense of necessity is presented in this case.  If you find that the State has proven all of the essential elements of (charge)_______________, beyond a reasonable doubt, you will need to consider this defense.  If the State has not proven all of the essential elements of (charge)_______________, then you must return a verdict of “not guilty.”

            (Def)_______________ bears the burden of proving necessity, by a preponderance of the evidence.  This means that the evidence must show that the elements of the defense are more likely true than not true.  This burden of proof is less than proof beyond a reasonable doubt.

            [For a fuller instruction on Proof by a Preponderance of the Evidence, insert CR04-121.]

            To sustain the defense of necessity, (Def)_______________ must have proven the following elements by a preponderance of the evidence:

(1)        There was a situation of emergency arising without fault on the part of (Def)_______________;

(2)        this emergency was so imminent and compelling as to raise a reasonable expectation of harm, either directly to (Def)_______________ or upon those [he] [she] was protecting;

(3)        this emergency presented no reasonable opportunity to avoid the harm without doing the criminal act; and

(4)        the harm from the emergency was of sufficient seriousness to outmeasure the criminal wrong.

Without fault means that (Def)_______________ did not [intentionally] [negligently] create the emergency situation.

            For an emergency to be imminent, it must be near at hand; it must be about to occur.

            You must evaluate the second and third elements based on (Def)_______________’s perception at the time [he] [she] acted.  However, [his] [her] beliefs must have been reasonable under the circumstances.

            Under the third element, (Def)_______________ must have shown that the emergency gave [him] [her] no reasonable opportunity to avoid the harm without doing the criminal act.  Also, (Def)_______________ must have reasonably believed that the criminal acts would avoid the injury.

            If the State has proven the essential elements of (charge)_______________ beyond a reasonable doubt, and if (Def)_______________ has not proven the elements of the necessity defense by a preponderance of the evidence, then you must find (Def)_______________ guilty.  However, if the State has not proven the essential elements of (charge)_______________, or if (Def)_______________ has proven the elements of the necessity defense, then you must find (Def)_______________ not guilty.