NCJ Number
114926
Journal
Yale Law and Policy Review Volume: 5 Issue: 2 Dated: (Spring/Summer 1987) Pages: 472-492
Date Published
1987
Length
21 pages
Annotation
This article studies a number of civil disobedience cases and argues that when courts do not permit peace activists to use the doctrine of necessity or international law and exclude the defendants' evidence and witnesses at trial, they deny them their constitutional right to a fair jury trial.
Abstract
In most civil disobedience cases, the courts have ruled that the defendants' justification for their acts is not applicable and the courts have therefore not permitted them to present to the jury evidence and testimony in support of their justification. The defnese of necessity has been incorporated into the penal codes of 20 States, while defenses relying on international law include justifying unlawful acts because they stop ongoing or imminent crimes, such as the Nuremberg Defense (civil disobedience undertaken in order to avoid complicity in international crimes). While some courts have recently acknowledged the necessity defense in civil disobedience trials, defendants must present evidence to show that their disobedient acts could reasonably be expected to stop the harm. Additionally, the defendants must show that no other lawful remedies were available, and the harm they are trying to stop must be imminent. If courts accept the defense of necessity, they are then required under the doctrine of due process to permit the defendants' arguments and testimony to be presented to the jury. 87 footnotes.