The problem: In Minnesota today, a medical marijuana patient charged with a marijuana crime is no longer allowed by the courts to tell the jury they were treating illness with marijuana.
The solution: A Bill in the 2015 Legislature would legislatively overrule the court decision that took away “the necessity defense” from medical marijuana patients facing marijuana charges.
Marijuana has been used as effective medicine for thousands of years. In the 1930s, Minnesota joined a social experiment of Prohibition outlawing the plant – even for medical use. Today though, a majority in the U.S.A. believe that medical marijuana should not be a crime.
Trial by jury limits the power of the government to enforce laws in ways that violate the conscience of the community. Yet when a chronic pain patient using marijuana as medicine is charged with a marijuana crime, but is not permitted to have their physician testify, or to testify about it themselves; there is no meaningful jury trial. When the court prevents the jury from hearing defense evidence, excluding the defense, her right to present a defense is violated.
“Necessity” has been a recognized legal defense to what otherwise would be a crime, since ancient times. The New Testament cites examples of eating holy bread through necessity of hunger or taking another’s corn. Mathew 12:3-4. Old English cases recognize the defense of necessity. It was a defense to breaking a law that the accused committed the act to save a life or put out a fire. A person did not commit the misdemeanor of exposing an infected person in public if the person was being carried through the streets to a doctor.
- Like self-defense, the necessity defense is an affirmative defense to a criminal charge – a “lesser-of-two-evils” defense. After the accused presents evidence supporting the defense, the judge instructs the jury on the law of the defense of necessity. If the jury accepts the defense: the defendant did the prohibited act intentionally, but did so reasonably to avoid a greater evil, out of necessity; so it is not a crime.
- The necessity defense was repealed by a 1991 Minnesota court decision, in State v. Hanson, 468 NW 2d 77 (Minn Court of Appeals 1991). FFI see: Marijuana Medical Necessity: Why Minnesota Needs a Law Affirming Your Defense.
- The Minnesota Legislature can restore the rights to a jury trial and to present a defense by passing HF 542 & SF 404. The Bill restores the necessity defense to medical marijuana patients charged with a marijuana crime. Jurors have the right to know the relevant facts before judging a person’s fate.
- People like Angela Brown, and her 15 year-old son, should be allowed to present a necessity defense at her trial, so the jury can then have the power to decide her case based upon the true facts, not some version of the truth manipulated by the court.
Urge your Minnesota Rep. and State Senator to support the necessity defense Bill, HF 542 – SF 404, to assure medical patients have the “right to introduce evidence or testimony of a medical need to use, … or [evidence of] a benefit derived from the use” of marijuana or derivatives.
Thomas Gallagher is a Minneapolis Marijuana Lawyer working in criminal defense.