What is Necessity?

Trial by jury is a basic tenet of fairness in our courts. The defense of necessity allows a person who broke the law to present a jury with evidence that they acted in the best interest of society. The rationale for this defense is that circumstances arise when the consequences of following the letter of the law are worse than the consequences of breaking it. The British legal scholar Glanville Williams characterized necessity this way: “By necessity is meant the assertion that conduct promotes some value higher than the value of literal compliance with the law.” (Arnolds and Garland) When arguing necessity the defendant shows he or she chose the least harmful available option. In my mother’s case, her choice was between violating a statute that had included me for only thirty three days and providing me with medicine the State suddenly acknowledged I needed. To make a fair decision the jury needs to hear all of the evidence, “Indeed, it is a case where defendant’s actions cannot be explained in any way other than through a presentation of the necessity defense” (¶ 36).

Necessity is an affirmative defense, the defendant has the burden of proving that their actions were justified by a preponderance of the evidence. This does not mean that a defendant has to prove to a judge they acted out of necessity before being allowed to present the defense to a jury. The defendant just needs to offer some evidence to each of the of the four elements of the defense to raise necessity at trial. As Chief Justice Reiber and Justice Johnson could see, we did that: “…defendant proffered sufficient proof on each element, and, as a result, the trial court’s foreclosure of such evidence constituted reversible error” (¶ 17). If the evidence presented at trial is insufficient to establish the defense, the judge does not give a jury instruction on necessity.

On August 20th 2008, Judge Cohen had us choose a jury with the intention of proceeding in this fashion. We set a date for trial and readied our defense. In September the judges rotated and Judge Zonay came to Rutland District Court. He couldn’t understand that my mother believed our situation to be an emergency that outweighed the harm of cultivating cannabis, so he excluded all evidence concerning my brother, medical marijuana, or me. When a trial judge denies a non-frivolous claim of necessity he takes the role of the jury and he acts as the conscience of the community. Chief Justice Reiber could see that “the State’s arguments did not meet the high threshold required to have the necessity defense excluded pretrial, and the trial court therefore erred in making such a ruling” (¶ 17).

Necessity is sometimes called the choice of evils defense because at its core is a decision about whether the harm caused is outweighed by the harm avoided. In our case it absolutely was. As Reiber said, “At the heart of the necessity defense is a difficult value judgment.  A violation of a criminal statute is no small matter, but neither is a child’s illness, particularly when, as here, that illness is life-threatening… A reasonable juror could conclude that the life of a child outmeasured the seriousness of committing the crime of cultivation of marijuana.  For that reason, the question was for the jury” (¶ 25).

For us, the trial court’s refusal to allow our facts to be presented to a jury means that my mom can explain nothing about our family. It means that my doctor can explain nothing about how effective cannabis has been for me. It means that the court will malign my mom as a terrible criminal when she is actually a wonderful and caring mother. The decision to prosecute this like a commonplace drug felony means that seriously ill patients, throughout Vermont and across the country, will continue to be treated like criminals barely held in check by the law.

What harm did Sue Thayer cause by growing a garden to provide my medicine in the only way she knew how? Who benefits from not allowing her to present our story to a jury? As Chief Justice Reiber said, “If the serious illness of a child, which ultimately leads to death, is not an emergency, what is?”

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3 Responses to What is Necessity?

  1. Traci Eddy says:

    Max, Sue, Lucy and Alan…
    My heart goes out to all of you!! I simply cannot fathom the depths of ignorance of some the officials that we have unfortunatly elected!! Anything that I can do for you personally, I will do it!! You have all been through so much and are such an amazing family. Stay strong and remember that there are those of us who truely believe in you behind you!

  2. Cacky Ayer-Dufner says:

    I find it hard to fathom that there is no recourse that you can take to overrule the new judge’s ruling. We are 100% behind you …. how can we help?

    • winterthayer says:


      Thank you for your support. The best thing we can do right now is to raise awareness about this injustice; tell friends and family, write letters to the editor, let people know how you feel. The State’s Attorney is an elected official who is supposed to work for the people, tell him what you think of how he’s spending your money. I’ve posted some information about how to get the word out here, and I will be updating it as the case progresses. We truly appreciate your concern, it is good to know people care.

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