Necessity appears to be an affirmative defense where the defense bears the burden of proof by the preponderance under PC 2.04, but some of the cases I am reading refer to PC 9.22's language that it is a justification and the bruden is on the state to diprove the justification....Anybody got clear law on how to allocate the burden in the charge?
Posts: 51 | Location: Montogmery County | Registered: June 23, 2003
Read Section 9.22 in conjunction with Section 9.02. Section 9.02 creates the defense of justification. Section 9.22 defines necessity as a type of justification. Because justification is a defense under Section 9.02, you follow the dictates of Section 2.03, which basically puts the burden on the State to disprove it at trial. In other words, if a jury finds the conduct justified, or has a reasonable doubt on that issue, it acquits the defendant.
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
