Commonwealth v. Hood

¶1(concurring). The court today appears to suggest that the allowance of a motion in limine to bar the introduction of any evidence at trial which would have substantiated a necessity defense constituted nonprejudicial error. While I agree with this conclusion, I believe that the court’s reasoning sweeps too broadly.

¶2A persuasive body of law has developed condemning the indiscriminate use of motions in limine “‘to choke off a valid defense in a criminal action,’ State v. Quick, 226 Kan. 308, 311 (1979), or to ‘knock out’ the entirety of the evidence supporting a defense before it can be heard by the jury.” Commonwealth v. O’Malley, 14 Mass. App. Ct. 314, 324-325 (1982). The use of such motions to prevent the defendant from introducing “evidence on an available defense not only distorts the traditional application of motions in limine, but likewise raises serious constitutional questions relating to an accused’s right to present a defense.” People v. Brumfield, 72 Ill. App. 3d 107, 113 (1979). Commonwealth v. O’Malley, supra at 323-325. State v. Bradley, 223 Kan. 710, 713 (1978). See People v. Williams, 60 Ill. App. 3d 529 (1978); State v. Warshow, 138 Vt. 22, 29-32 (1979) (Billings, J., dissenting). Cf. Chambers v. Mississippi, 410 U.S. 284, 294-295 (1973). If the defendant’s right to have his day in court is to be guaranteed, he must be given the opportunity to establish even a tenuous defense. People v. Brumfield, supra. Lewis v. Buena Vista Mut. Ins. Ass’n, 183 N.W.2d 198, 200-201 (Iowa 1971). See Commonwealth v. O’Malley, supra. The court accepts the validity of these principles, but fails to recognize their clear implications.

¶3Necessity is a legally viable defense to criminal behavior. W. LaFave & A.W. Scott, Jr., Criminal Law § 50 (1972). *597Once a defendant offers to prove sufficient facts to establish each element of the defense, it is reversible error to disallow evidence of necessity. State v. Warshow, supra(Billings, J., dissenting). It is irrelevant to this point whether the trial court, or this court, would find later that the defendant had not introduced sufficient evidence on each element of the defense to generate a jury question.

¶4That the defendants should be allowed to present their defense is required by a proper respect for the role of the jury in the criminal justice system.1 The essential purposes of the jury trial are twofold. First, the jury temper the application of strict rules of law by bringing the common sense judgment of a group of laymen to the case.2 Second, the jury stand as a check on arbitrary enforcement of the law. “Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.” Duncan v. Louisiana, 391 U.S. 145, 156 (1968). The legitimacy of a jury verdict depends on the ability of the jury to perform these two functions.

¶5In the instant case, however, the defendants’ offer of proof fell short and satisfied only two elements of a necessity defense. They offered to prove that they were faced with a *598clear and imminent danger and that their actions reasonably could be expected to be effective.3 They did not offer to prove that there was no legal alternative which would have been effective in abating the danger, or that the Legislature had not acted to preclude the defense by a clear and deliberate choice regarding the values at issue. Since the defendants did not allege that they would introduce sufficient evidence on each element of the defense to generate a jury question, I agree with the court that “they were not prejudiced by their inability to present their evidence to the jury.” Supra at 595. Had their offer of proof been sufficient, they would have been entitled to present their evidence to the jury, and the allowance of the motions in limine would constitute reversible error. State v. Warshow, supra(Billings, J., dissenting).