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The choice of evils justification is based on the idea that sometimes it is necessary to perform an “evil” act to prevent an even greater one. Since the nature of the defense is the relative weighting of two harms, it is often referred to as the lesser of two evils defense. Destroying property to prevent the spread of a dangerous fire is a common example. Under the Model Penal Code, “conduct which the actor believes to be necessary to avoid harm or evil…is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.” The actual application of the defense can vary widely by jurisdiction. The choice of evils defense can be defined by statutes, or the common law doctrine can be retained. It can be a perfect defense or an imperfect defense, depending on the state.
In general, the choice of evils statutes require two fundamental complaints to be present before a criminal defendant may use the choices of evil justification:
- The conduct was necessary as an emergency measure to avoid an imminent public or private injury.
- The desirability and urgency of avoiding the injury outweigh, according to ordinary standards of reasonableness, the injury sought to be prevented.
If the actor is reckless or negligent in bringing about the circumstances requiring the “choice between evils” or in appraising the necessity of the conduct, then the justification may not be used.
Modification History File Created: 07/13/2018 Last Modified: 05/03/2021
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