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A recent Indiana Supreme Court decision reversed the trial court and ruled that a jury should have been instructed on the Defense of Necessity. In this particular case, a driver was pulled over and arrested for driving with a suspended license.  When the passenger, John Hernandez, was asked to leave the vehicle so the car could be towed, Hernandez exited the vehicle and informed the police he had a handgun in his pocket. Hernandez was then placed under arrest for possessing a handgun without a license.

At trial, Hernandez testified that the gun belonged to the driver, and that the driver had told Hernandez to claim the weapon as his own “or else.” Hernandez had been fearful of the driver, as he was aware of the driver’s felony criminal history and was frightened of what the driver might do to him or others. At the scene of the arrest, once Hernandez and the driver were separated, Hernandez told the police that the gun belonged to the driver.  Hernandez testified under oath to all of this.

At the conclusion of the case, Hernandez’s attorney requested that that the jury be instructed on the Defense of Necessity. The judge refused, and Hernandez was found guilty. Hernandez appealed, and the Indiana Supreme Court reversed the trial court, reaffirming the long-held standard that if there is even the smallest bit of evidence supporting a defense, the jury must be instructed accordingly – even if the evidence supporting the defense is weak or underwhelming.

In order to prove necessity, a Defendant must provide some evidence, even self-serving oral testimony, that: 1) the criminal act was the result of an emergency; 2) there was no adequate alternative; 3) the criminal act was not disproportionate to the harm avoided; 4) the Defendant had a good faith belief his actions were reasonable; and 5) the Defendant did not substantially contribute to the emergency. The Defense of Necessity is a holdover from the common law. It is not listed in any statute, but it is still relevant today.

Attorney Marc Lopez has won trials using the Defense of Necessity. A person facing criminal charges needs to explore any and all defenses, including the Defense of Necessity. Contact the Attorneys at The Marc Lopez Law Firm at (317) 632-3642 to learn more about possible criminal defenses. Or contact us by email.