Lesser Harm Defense

In the United States, criminal charges will be brought against individuals by either the state, the people, or the United States itself for federal crimes. The party that brings the criminal charges is known as the prosecutor. In order to be charged and prosecuted with a crime, the criminal charges must be proven beyond a reasonable doubt.

It is important to note that a criminal defendant is not responsible for showing that they are innocent. In fact, many criminal defense cases are won by the simple fact that the prosecution has not met its burden to show that the defendant is guilty beyond a reasonable doubt.

Further, in order for an act to even be considered a crime, the criminal act must be done both intentionally in violation of a law and also without any justification or legal defense. Thus, a legal defense is an argument that can be asserted by an individual accused of a crime to challenge the sufficiency of the prosecution’s evidence.

There are numerous legal defenses that may be asserted in response to criminal charges. For example, an individual accused of a crime could demonstrate:

• That there are holes in the prosecution’s case and they have not met the burden of proving the crime beyond a reasonable doubt;
• That the prosecution’s evidence was gathered in violation of the accused individual’s constitutional rights;
• That there was a justifiable reasons for the criminal act being performed, such as a defense of self, property, or others; and/or
• That the accused individual did not possess an intent to commit the crime, or lacked capacity.

Once again, there are numerous legal defenses that may be utilized if you have been charged with a crime. Therefore, it is important to consult your local laws regarding the crime(s) you have been charged with in order to determine if a legal defense may be asserted.

What Is a Justification Defense?

A justification defense is a legal defense which allows a defendant to be cleared from criminal liability for a criminal act based on their acts being “justified.” In other words, the defendant would admit to committing the crime, but the defendant would then assert that they had a compelling reason for committing the act that absolves them of any criminal liability. The most common justification defenses include, but are not limited to:

• Self-Defense: The most common justification defense raised for a crime is self-defense. Self-defense is often raised as a defense against crimes such as assault or battery, where the individual accused of the crime asserts they committed the act in a justified way as they were responding to a violent action or threat of a violent action against them;
• Defense of Others: Similar to self-defense, defense of others may also be raised as a means of justifying the criminal act due to the fact that the defendant was protecting someone else. This defense will typically be more effective if the defendant has a close relationship with the individual they are defending, such as their spouse, child, or a family member.
  • However, the defense of others justification defense may also be raised if the defendant protected a total stranger. For example, if the defendant witnessed an old man being assaulted on a bus by multiple people and stepped in to prevent further harm to the old man, the assault and battery charges may be dropped against the defendant;
• Defense of Property: Similar to self-defense and defense of others, the defense of property is another defense that involves justifying the use of violence. This defense is raised when a defendant used force or violence to protect property, such as their vehicle or home, from damage being done by another. It is important to note that the force used by the defendant in the defense of property cannot be lethal; and/or
• Lesser Harm or Necessity: In some cases a defendant can raise the defense of lesser harm or necessity to have the criminal charges brought against them dropped or lessened. This legal defense will be discussed further below.

What Is the Lesser Harm Defense?

Once again, the lesser harm defense is a justification defense. This means that although the defendant will admit to the crime, they will assert that they were justified in committing the act. If the lesser harm defense is successful, the prosecution will drop the charges brought against the defendant completely.

The lesser harm defense may also be referred to as the necessity defense or the lesser of two evils defense depending on your specific jurisdiction. The lesser harm defense will typically be raised where a defendant committed a criminal act, as a means of preventing a more significant harm from occurring. The defense will claim that the defendant had to commit the act, as if they did not commit the act the greater harm would have occurred. Thus, in order to properly raise the lesser harm defense, the defendant will have to show that the more significant harm would have likely occurred had they not intervened.

For example, there is no doubt that stealing is a criminal act. However, if the defendant stole food to feed their starving family, they may assert the lesser harm defense to lessen the charges brought against them. Another example is a defendant breaking into their neighbors home that was catching fire to remove their neighbor’s animals from the home. Once again, there is no doubt that breaking and entering is a crime, but had they not done so, the animals inside could have perished.

How Do I Justify My Actions Using the Lesser Harm Defense?

Once again, it is up to the defendant to assert and prove the lesser harm defense in order to have the criminal charges brought against them lessened or dropped. In order to establish the lesser harm defense, a defendant must prove the following:

• That there was a threat of imminent danger;
• That the imminent danger made it necessary for the defendant to perform the criminal act;
• That the defendant had no other practical alternative besides committing the criminal act;
• That the defendant did not contribute to or cause the imminent threat of danger that made their actions necessary;
• That the defendant acted out of necessity in each and every step of the situation; and
• That the harm the defendant caused was not greater than the harm that would have happened had they not acted. In other words, the crime that the defendant prevented would have caused much greater harm.

Is a Duress Defense the Same as a Lesser Harm Defense?

In short, no. The duress or coercion defense is a defense that is raised when a defendant commits a crime under the threat of immediate death or bodily harm. For example, if the defendant had a gun pointed at them, and was ordered to drive a getaway car, the defendant could assert that they were under duress at the time of commission of the crime.

Duress is different from the lesser harm defense because for the duress defense the defendant is not making a choice about which harm will be inflicted. Instead, the defendant is in a situation where they do not have a choice at all, and are being forced to commit an act against their will.

Do I Need an Attorney To Help Me Use the Lesser Harm Defense?

As can be seen, raising a legal defense in a criminal case is common, and can result in the charges brought against a defendant being lessened or dropped completely. In order to raise the lesser harm defense, a defendant is required to prove they had to choose between two evils, and chose the lesser one. The lesser harm defense is often difficult to prove, and requires a solid presentation of evidence to support the defense claim.

Therefore, if you have been charged with a crime, it is important to immediately consult with an experienced criminal defense attorney. An experienced criminal defense attorney will be able to assert any applicable legal defenses in your case, as well as represent you in court, as needed.