An individual who is accused and charged with committing a criminal act has the right to present a defense at trial. The person being charged with the crime, called a defendant, and their lawyer work together to establish a defense strategy in response to the criminal allegations being brought against the defendant.

What Is a Justification Defense?

A justification defense allows a defendant to be cleared from criminal liability for a criminal act. In other words, the defendant admits to committing the crime, but claims to have had a compelling reason for doing it that absolves them of any attached liability. Well-known justification defenses include:

  • Self-defense
  • Crime prevention
  • Reasonable mistake of the fact
  • Lesser harm

What Is a Lesser Harm Defense?

A lesser harm, or necessity, defense claims the defendant had to commit the crime to prevent an even greater harm from occurring. It is also called the lesser of two evils defense because the individual had to choose the between causing one form of harm and permitting the other form of harm to happen.

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

To establish the lesser harm defense, a defendant must prove:

  • There was a threat of imminent danger
  • The imminent danger made it necessary for the defendant act
  • The defendant had no practical alternative to committing the criminal act
  • The defendant did not contribute to or cause the imminent threat of danger
  • The defendant acted out of necessity in each step of the situation
  • The harm the defendant caused was not greater than the harm that was prevented

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

No. The duress, or coercion, defense is used when a defendant commits a crime under the threat of immediate death or bodily harm. For example, the defendant was ordered to rob the victim or be shot by an assailant. This is different that the lesser harm defense because the defendant is not making a choice bout which harm will be inflicted. Rather, they are in a situation where they really do not have a choice and are being forced to do something against their will.

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

The lesser harm defense requires a defendant to prove they had to choose between two evils and chose the lesser one. This is often difficult to prove. Contact a criminal attorney to learn more about this defense and see if it is worth raising in your defense.