Under the necessity defense, what must be shown about the harm avoided and the harm caused?

• A. The defendant intended to commit a crime
• B. The harm avoided must be greater than the harm caused
• C. The government tempted the defendant
• D. The harm avoided must outweigh the harm that would have occurred without it

Answer: (B)

The main idea here is balancing harms in the necessity defense. The defendant may use this defense only if the illegal act was taken to prevent a greater imminent harm, and crucially, the harm avoided by the act must exceed the harm caused by committing the illegal act. In other words, you compare what would happen if the act weren’t done versus what actually happens because the act was done, and the decisive factor is that the avoided harm is the more serious one. This is why the correct formulation is that the harm avoided must be greater than the harm caused. The other points aren’t the controlling test: criminal intent, or the idea that the government tempted the defendant, aren’t the key factors, and while it’s related to proportionality, the essential requirement is the direct greater-harm-forgone comparison.