RE: Would you knowingly break the law?
The elements of a necessity defense vary from state-to-state, and from the federal standard. Generally, the defense must show 1) that the defendant did not intentionally bring about the circumstance which caused the unlawful act; 2) that the defendant could not accomplish the same objective using a less offensive (i.e. "more legal") alternative available to the defendant; and 3) that the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it. Under federal law, a defendant must establish the existence of four elements to be entitled to a necessity defense: A) that he was faced with a choice of evils and chose the lesser evil; B) that he acted to prevent imminent harm; C) that he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and D) that there were no other legal alternatives to violating the law. See , e.g., United States v. Aguilar, 883 F.2d 662, 693 (9th Cir. 1989).
Retrieving a lost crying child on private land would qualify for a necessity defense against a trespassing charge. The question I would ask as a prosecutor would be: Number one was the situation created intentionally? The answer would be yes if the deer was shot across the line and no if it was shot on your land and ran across the line.Item 2 would pose a problem retrieving the deer because the hunter elected to trespass first without first attempting to secure permission from the land owner. Item 3 would be the crux of the problem simply stating what was the lesser of two evils? Is deer recovery more important to the letter of the law than personal property rights? Note the deer technically isn't your property until you take physical legal possession as prescribed by state or federal statutes. My opinion is that there wouldn't be a qualified legal defense against a trespassing charge. All of this is assuming a person shot the deer, it ran off the property onto private property and the hunter elected to retrieve it without attempting to secure permission and was caught.