recognizes a common law necessity defense. The defense may be
raised when a defendant demonstrates that they reasonably
believed the commission of the crime was necessary to avoid
or minimize a harm, the harm sought to be avoided was greater
than the harm resulting from a violation of the law, the
threatened harm was not brought about by the defendant, and
no reasonable legal alternative existed.
Ward appeals his conviction for burglary in the second degree
after he broke into a Kinder Morgan pipeline facility and
turned off a valve, which stopped the flow of Canadian tar
sands oil to refineries in Skagit and Whatcom Counties. Ward
intended to protest the continued use of tar sands oil, which
he contends significantly contributes to climate change, and
the inaction by governments to meaningfully address the
crisis of climate change. Ward argues that he was deprived of
his Sixth Amendment right to present his only
defense-necessity-after the trial court granted the
State's motion in limine excluding all testimony and
evidence of necessity. We agree and reverse.
Morgan transports tar sands oil from Canada into the United
States by pipeline. On October 11, 2016, Kinder Morgan was
notified by telephone that persons "would be closing a
valve, one of our main line valves in the Mount Vernon area
within the next 15 minutes." Following the call, Ward
cut off a padlock and entered the Kinder Morgan pipeline
facility off of Peterson Road in Burlington. Ward then closed
a valve on the Trans-Mountain pipeline and placed sunflowers
on the valve. At the same time, other protesters closed
similar valves in North Dakota, Montana, and Minnesota.
Collectively, the protests temporarily stopped the flow of
Canadian tar sands oil from entering into the United States.
was arrested at the pipeline facility and charged with
burglary in the second degree, criminal sabotage, and
criminal trespass in the second degree. Ward admitted his
conduct but argued that his actions were protected under a
necessity defense. The trial court granted the State's
pretrial motion in limine to preclude all witnesses and
evidence offered in support of Ward's necessity defense.
first trial ended with a hung jury. The State then recharged
Ward with burglary in the second degree and criminal
sabotage. Ward moved for reconsideration of the trial
court's order granting the State's motion in limine.
In support of his motion, Ward offered argument, the
curriculum vitae for eight proposed expert witnesses, and
voluminous scientific evidence documenting the impacts of
climate change, that climate change is primarily caused by
greenhouse gas emissions resulting from human activity, and
the contribution of burning tar sands oil. The trial court
denied Ward's motion for reconsideration and excluded all
testimony and evidence in support of Ward's necessity
defense. A second jury found Ward guilty of burglary but were
unable to return a verdict on criminal sabotage. Ward
argues that the trial court denied his constitutional right
to present a defense by granting the State's motion in
limine striking all testimony and evidence of necessity. We
review a claim of a denial of Sixth Amendment rights de novo.
State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576
(2010); State v. Lizarraga, 191 Wn.App. 530, 551,
364 P.3d 810 (2015). Since Ward argued that his Sixth
Amendment right to present a defense has been violated, we
review his claim de novo.
Sixth Amendment to the United States Constitution and article
1, sections 21 and 22 of the Washington Constitution
guarantee a defendant the right to trial by jury and to
defend against criminal allegations. State v.
Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002).
"The right of an accused in a criminal trial to due
process is, in essence, the right to a fair opportunity to
defend against the State's accusations."
Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct.
1038 35 L.Ed.2d 297 (1973). "A defendant's right to
an opportunity to be heard in his defense, including the
rights to examine witnesses against him and to offer
testimony, is basic in our system of jurisprudence."
Jones, 168 Wn.2d at 720.
The fundamental due process right to present a defense is the
right to offer testimony and compel the attendance of a
witness. '[I]n plain terms the right to present a defense
[is] the right to present the defendant's version of the
facts as well as the prosecution's to the jury so it may
decide where the truth lies. Just as an accused has the right
to confront the prosecution's witnesses for the purpose
of challenging their testimony, he has the right to present
his own witnesses to establish a defense. This right is a
fundamental element of due process of law.'
Lizarraga, 191 Wn.App. at 552 (quoting Taylor v.
Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d
right is not absolute. "The defendant's right to
present a defense is subject to established rules of
procedure and evidence." Lizarraga, 191 Wn.App.
at 533 (internal citation omitted). A defendant does not have
a constitutional right to present irrelevant evidence.
Jones, 168 Wn.2d at 720. "[I]f relevant, the
burden is on the State to show the evidence is so prejudicial
as to disrupt the fairness of the fact-finding process at
trial." Darden, 145 Wn.2d at 622. "The
State's interest in excluding prejudicial evidence must
also be balanced against the defendant's need for the
information sought, and only if the State's interest
outweighs the defendant's need can otherwise relevant
information be withheld." Darden, 145 Wn.2d at
the trial court prohibited Ward from presenting evidence or
witnesses on the necessity defense. If Ward submitted a
sufficient quantum of evidence to show that he would likely
be able to meet each element of the necessity defense, then
the trial court's exclusion of evidence in support of his
sole defense violated Ward's constitutional rights.
act is justified if it by necessity is taken in a reasonable
belief that the harm or evil to be prevented by the act is
greater than the harm caused by violating the criminal
statute." State v. Aver,109 Wn.2d 303, 311,
745 P.2d 470 (1987). Necessity is available when "the
pressure of circumstances cause the accused to take unlawful
action to avoid a harm which social policy deems greater than
the harm resulting from a violation of the law . . . [but not
where] a legal alternative is available to the accused."