Ms. Brattoli was charged with trespassing Newport Mall on Sunday, June 10th. The common law defense of necessity exonerates one who commits a crime under the pressure of circumstances if the harm that would have resulted from compliance with the law exceeds the harm actually resulting from the defendant’s violation of the law. Once the foundational requirements are met, the necessity defense allows a jury to consider the plight of a person with a hearing loss against any harms caused by a trespass before determining criminal responsibility (Magadini). To begin, for a defendant to be entitled to a necessity defense instruction, he or she must present some evidence on each of the four underlying conditions of the defense: (1) an clear and…show more content… Brattoli satisfies condition one. Ms. Brattoli has a profound hearing loss in both ears. She needs her hearing aid in order to be able to hear and do everyday tasks such as communicating. Since Ms. Brattoli grew up with it she does not know how to live without it. Therefore on the day of the incident, she would of not been able to drive home. Although, people who are hearing impaired are able drive, they are taught through various courses. However, Ms. Brattoli never took any since she had her hearing aid. She could of not waited until the next day, and risk it being thrown out or stolen as her hearing aid is discontinued and it would require her to get a new one. This would involve her spending over $12,000, which she does not have in addition to, surgery and doctor appointments. This would also take months and Ms. Brattoli would not have been able to function without hearing for that time. In Hutchins, only when a comparison of the “competing harms” in specific situations clearly favors excusing what otherwise be punishable conduct, can a person have a necessity claim. In Hutchins, the alleviation of the defendant's medical symptoms would not clearly and significantly outweigh the potential harm to the public were we to declare that the defendant's cultivation of marihuana and its use for his medicinal purposes. Unlike, Hutchins, where the defendant argued a defense of medical necessity after being charged with possession of marijuana, Ms. Brattoli trespass charge…show more content… Brattoli does not have a defense of necessity claim under element three since, she there is no evidence that, there were no other legal alternative, which will be effective in abating the danger. If there is an effective alternative available, which does not involve a violation of the law, the defendant will not be justified in committing a crime (Kendall). In 2008 under Kendall, the court denied defendant from a necessity claim because there was no showing that available alternatives would have been ineffective, leaving defendant with no option other than to commit the crime. The defendant in Kendall was driving his girlfriend to the hospital while intoxicated because she was bleeding uncontrollably and had no other alternative since time was very crucial and his girlfriend was in an imminent danger, which is not debatable or speculative. She was profusely bleeding with an open head injury. The court in this case held the defendant did not futile all conceivable alternatives such as not contracting nearby neighbor to call 911, secure help from fire station or Chinese restaurant which were located close to his home. The dissenting opinion in Kendall argued that the court’s decision puts unreasonable demands on the defendant to show in every instance that he has tested the legal alternatives. Magadini agrees with the dissenting opinion and in 2016, rule that element three does not require showing that the defendant has exhausted
