MPC § 3.02: Justification Generally: Choice of Evils
What does Justification Generally: Choice of Evils (Model Penal Code) provide?
Section 3.02 codifies the necessity (choice of evils) defense. It provides that conduct that the actor believes to be necessary to avoid a harm or evil to themselves or another is justifiable, provided that 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. This establishes a balancing test: the harm avoided must be greater than the harm caused.
Source: Model Penal Code § 3.02
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Summary
Section 3.02 codifies the necessity (choice of evils) defense. It provides that conduct that the actor believes to be necessary to avoid a harm or evil to themselves or another is justifiable, provided that 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. This establishes a balancing test: the harm avoided must be greater than the harm caused.
The defense is available only when neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved. When the actor was reckless or negligent in bringing about the situation requiring a choice of evils, or in appraising the necessity for their conduct, the justification defense is unavailable for offenses for which recklessness or negligence suffices (paralleling the duress provision in Section 2.09).
Importantly, the MPC's necessity defense is a subjective-objective hybrid. The actor must "believe" the conduct is necessary (subjective), but the balancing of evils — whether the harm avoided is actually greater than the harm caused — is an objective determination for the jury. The legislative branch, not the defendant, makes the ultimate value judgment about which harms are greater. This prevents defendants from substituting their own moral judgments for those of the legal system.
Key Provisions
5 essential provisions of § 3.02
Conduct believed necessary to avoid harm is justifiable if the harm avoided is greater than the harm caused by the criminal act
The balancing of harms is an objective test — the jury determines which evil is greater
The actor must subjectively believe their conduct is necessary
Defense unavailable if the Code already provides specific exceptions or defenses for the situation
If actor was reckless or negligent in creating the necessity, defense unavailable for crimes requiring only recklessness or negligence
MPC vs. Common Law
How the MPC approach to justification generally: choice of evils differs from common law
The common law necessity defense was narrower and less clearly defined. Many jurisdictions required that the harm be imminent, that the defendant have no legal alternative, and that the harm avoided be clearly greater than the harm caused. Some jurisdictions also required that the situation not be created by the defendant and that the defense not apply to homicide. The MPC removes the strict imminency requirement and does not categorically exclude any offense, though the balancing test would make it very difficult to justify homicide. The common law also struggled with whether the defense was available for economic necessity or protest-related civil disobedience — the MPC's balancing framework addresses these by simply asking whether the harm avoided was objectively greater than the harm caused.
Exam Relevance
How § 3.02 appears on criminal law exams
Necessity questions often involve dramatic fact patterns: D breaks into a cabin during a blizzard, D steals a car to rush an injured person to the hospital, or D violates a traffic law to avoid an accident. The key analytical steps: (1) Did D believe the conduct was necessary? (2) Was the harm avoided objectively greater than the harm caused? (3) Was there a legal alternative? (4) Did D create the situation recklessly or negligently? Students should distinguish necessity from duress — necessity involves a choice between two evils arising from circumstances (often natural), while duress involves coercion by another person. Also note the limited applicability to homicide — while the MPC does not categorically bar it, the balancing test makes it nearly impossible to justify taking a life.
Related Sections
Sections frequently studied alongside § 3.02
Duress
Article 2 — General Principles of Liability
Use of Force in Self-Protection
Article 3 — General Principles of Justification
Mistake of Law as to Unlawfulness of Force or Legality of Arrest; Reckless or Negligent Use of Otherwise Justifiable Force
Article 3 — General Principles of Justification
More from Article 3 — General Principles of Justification
Other sections in Article 3