(dissenting, with whom Nolan, J., joins). I believe that a jury, not a judge, ordinarily should be allowed to determine whether medical necessity is a defense to a charge of possession or cultivation of marihuana. “The defendant [ ] presented sufficient evidence to raise such a defense. Neither the judge below nor this court should substitute its judgment for the sound deliberations of the jury.” Commonwealth v. Schuchardt, 408 Mass. 347, 352 (1990) (Liacos, C.J., concurring in part and dissenting in part).
The court today engages in speculative judicial fact finding by concluding that “the alleviation of the defendant’s medical symptoms, the importance to the defendant of which we do not underestimate, would not clearly and significantly outweigh the potential harm to the public were we to declare that the defendant’s cultivation of marihuana and its use for his medicinal purposes may not be punishable. We cannot dismiss the reasonably possible negative impact of such a judicial declaration on the enforcement of our drug laws, including but not limited to those dealing with marihuana, nor can we ignore the government’s overriding interest in the regulation of such substances.” Ante at 732. While I recognize that the public has a strong interest in the enforcement of drug laws and in the strict regulation of narcotics, I do not believe that the interest would be significantly harmed by permitting a jury to consider whether the defendant cultivated and used marihuana in order to alleviate agonizing and painful symptoms caused by an illness. The court seems to suggest that we should not condone the use of marihuana, regardless of a particular individual’s reasons for using the drug. Although the court appears to recognize the defense by taking this position, it fails to give sufficient consideration to the rationale behind the common law defense of necessity. That rationale is based on the recognition that, under very limited circumstances, “the value protected by the law is, as a matter of public policy, eclipsed by a superseding value which makes it inappropriate and unjust to apply the usual criminal rule.” Commonwealth v. Brugmann, 13 Mass. App. Ct. 373, 377 (1982).
*734The superseding value in a case such as the present one is the humanitarian and compassionate value in allowing an individual to seek relief from agonizing symptoms caused by a progressive and incurable illness in circumstances which risk no harm to any other individual. In my view, the harm to an individual in having to endure such symptoms may well outweigh society’s generalized interest in prohibiting him or her from using the marihuana in such circumstances.1 On a proper offer of proof I would recognize the availability of a necessity defense when marihuana is used for medical purposes. Accord Jenks v. State, 582 So.2d 676 (Fla. Dist. Ct. App. 1991); State v. Bachman, 61 Haw. 71 (1979); State v. Hastings, 118 Idaho 854, 856 (1990); State v. Diana, 24 Wash. App. 908, 915-916 (1979).
To recognize a medical necessity defense based on the use of marihuana for medical purposes would not allow every defendant charged with possessing or cultivating marihuana to present such a defense to the jury. Instead, “the application of the defense [would be] limited to the following circumstances: (1) the defendant is faced with a clear and imminent danger, not one which is debatable or speculative; (2) the defendant can reasonably expect that his [or her] action will be effective as the direct cause of abating the danger; (3) there is [no] legal alternative which will be effective in abating the danger; and (4) the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.” Commonwealth v. Schuchardt, supra at 349, quoting Commonwealth v. Hood, 389 Mass. 581, 591 (1983). See Commonwealth v. Brugmann, supra at 379. The defendant’s offer of proof satisfied all the elements of a ne*735cessity defense. The judge erred in not allowing the defendant to present evidence of medical necessity to a jury of his peers.2
The defendant’s offer of proof contained sufficient allegations that he faced a “clear and imminent danger.” The defendant presented affidavits from two physicians who stated that the defendant’s esophagus was dangerously constricted as a result of his illness, and that, without treatment, his esophagus would constrict to the point where the defendant would be unable to eat or drink without great difficulty and pain. The physicians also stated in the affidavits “that it does appear that [the defendant’s] use of mari[h]uana does alleviate [his nausea, loss of appetite, difficulty in swallowing, spasticity, hypertension, and anxiety].” Thus, the defendant offered to prove the second element of a necessity defense by showing that he had a “reasonable expectation” that smoking marihuana would be effective in abating the danger. The third element was satisfied when the defendant offered to prove that he had unsuccessfully attempted to acquire marihuana legally by seeking authorization from the Federal government to use marihuana for medical research. Finally, the fourth element was satisfied in this case since the Legislature has not precluded the medical necessity defense by clearly and deliberately choosing among the values at stake. See State v. Hanson, 468 N.W.2d 77, 79 (Minn. Ct. App. 1991); State v. Tate, 102 N.J. 64, 72 (1986).
Since the defendant’s offer of proof satisfied the four elements of a necessity defense, the judge’s refusal to allow the defendant to present evidence of medical necessity to the jury improperly prevented the jury from exercising their vital functions of “[1] temper [ing] the application of strict rules of law by bringing the common sense judgment of a group of laymen to the case [and] ... [2] standing] 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 *736upon community participation in the determination of guilt or innocence.’ Duncan v. Louisiana, 391 U.S. 145, 156 (1968).” Commonwealth v. Schuchardt, supra at 353 (Liacos, C.J., concurring in part and dissenting in part), quoting Commonwealth v. Hood, supra at 597 (Liacos, J., concurring). The court today once again unnecessarily interferes with the proper functions of the jury. I dissent.
-There is no reason to believe, as the court suggests, that allowing a defendant to present evidence of medical necessity to a jury will have a negative impact on the enforcement of drug laws. I am confident that juries would apply their wisdom and common sense in making sure that the necessity defense is not successfully utilized by defendants who use marihuana for purposes other than to alleviate agonizing and painful medical symptoms. In my view, this court’s recognition of a medical necessity defense in the circumstances of this case would have a negligible impact on the enforcement of drug laws.
The defendant, after the judge’s ruling, waived his right to a jury trial.