The "Choice of Evils" Defense

The choice of evils defense requires a defendant to show that they have committed a crime because it was the best alternative in a situation that would have had a worse outcome if had they not acted in the manner that they had. It other words, it is a defense based on a claim that the defendant was faced with a choice of evils.

For example, if a man has been drinking and drives his unconscious and dying wife to the emergency room, and he is subsequently charged with driving under the influence (DUI), he will argue that driving drunk was the better of the two evils. When the alternative is his wife dying, he could argue that he acted out of necessity.

Proving that Your Actions Were Necessary

The choice of evils defense is also known as the necessity defense or the lesser-evils defense. If you were attempting to prove that your actions, although illegal, were necessary under the circumstances, you would need to show that:

  • You were trying to prevent significant harm to yourself or another
  • An adequate legal alternative was not available at the time
  • Your illegal actions did not create a greater danger at the time
  • You actually believed that it was necessary to commit a crime
  • Your belief that committing a crime was necessary is also reasonable
  • You did not substantially contribute to the underlying emergency

When You Could Not Use the Choice of Evils Defense

Although there are a wide range of circumstances under which a defendant could use the "choice of evils" defense, there are some crimes that cannot be justified with a necessity defense. One of these circumstances would be crimes that were motivated by an opposition to abortion. Since abortion is a constitutional right, an individual could not justify committing a crime if they were trying to prevent an abortion from happening.

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