Reporter’s Note

The Vermont Supreme Court has recognized the necessity defense on numerous occasions, although it appears that the defense rarely succeeds.  See State v. Warshow, 138 Vt. 22 (1979) (long-term hazards of nuclear power plant are not “imminent”); State v. Shotton, 142 Vt. 558 (1983) (defendant entitled to raise defense that she drove out of necessity, to escape from husband and drive to hospital); State v. Squires, 147 Vt. 430 (1986) (driving while intoxicated not justified where defendant’s own conduct created the emergency); State v. Sullivan, 154 Vt. 437 (1990) (insufficient evidence of necessity where hunter said he didn’t affix tag to deer because he was afraid it would come off in transport); State v. Baker, 154 Vt. 411 (1990) (defendant, who bears burden of proving necessity, failed to persuade jury that his driving while license suspended was necessary due to medical emergency); State v. Cram, 157 Vt. 466 (1991) (defendant not entitled to raise defense of necessity, for criminal trespass onto range where GE tested Gatling guns, because he could not have reasonably believed that his actions would abate the harm); State v. Thayer, 2010 VT 78, 188 Vt. 482 (defendant not entitled to raise necessity defense where she was growing marijuana for her children for medicinal purposes, but had not complied with state laws regulating such growth); State v. Myers, 2011 VT 43 (defendant not entitled to instruction on necessity where he created the emergency by driving his truck on the complaining witness’s property).

The elements of the defense derive from LaFave & Scott, Handbook on Criminal Law § 50 (1972) (cited in State v. Warshow, 138 Vt. at 22).  The elements are restated in State v. Cram, 157 Vt. 466, 469 (1991).

The necessity defense is not available if the legislature has excluded it from consideration.  State v. Pollander, 167 Vt. 301 (1997) (context of DUI civil suspension proceedings).

In the case known as the “Trial of the Winooski 44,” the necessity defense was successfully invoked by protesters who had refused to leave Senator Stafford’s office until he agreed to hold a public discussion about the government’s involvement with the war in Nicaragua.  The case is official known as State v. Keller et al., No. 1372-4-84 CnCr.  Judge Frank Mahady instructed the jury that the State bore the burden of proving beyond a reasonable doubt that the necessity did not exist or apply.  See the book Por Amor Al Pueblo: Not Guilty! (Front Porch Publishing 1986).  Also see the article by Linda Vance, Esq., “The Necessity Defense in Political Trials:  An Appraisal,” which appeared in The Vermont Bar Journal & Law Digest, Vol. 12, No. 2, April 1986.