Commonwealth v. Brogan

*179Liacos, C.J.

(concurring). I agree with the result reached by the court, but disagree with the court’s reasoning on its treatment of the necessity defense. I concur for two reasons. First, the defendant’s offer of proof fell far short of establishing a prima facie case of the defense of necessity. See Commonwealth v. Schuchardt, 408 Mass. 347, 349 (1990). Second, the defendant failed to appeal or seek to modify the injunction.

I write separately to emphasize my continuing concern with the use of motions in limine to prevent evidence supporting a defense from being heard by the jury. Commonwealth v. Hood, 389 Mass. 581, 596 (1983) (Liacos, J., concurring). Additionally, I remain concerned about this court’s use of the competing harms test to engage in “speculative judicial fact finding.” Commonwealth v. Hutchins, 410 Mass. 726, 733 (1991) (Liacos, C.J., dissenting). I need not reiterate here the analysis I set forth in those opinions. It is sufficient simply to point out that the rationale behind the common law defense of necessity is based on the recognition that “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). I believe that a jury, not a judge, ordinarily should be allowed to determine such an issue. “The essential purposes of the jury trial are twofold. First, the jury temper the application of strict rules of law by bringing the common sense judgment of a group of laymen to the case. Second, the jury stand as a check on arbitrary enforcement of the law. . . . The legitimacy of a jury verdict depends on the ability of the jury to perform these two functions.” [Footnote omitted.] Commonwealth v. Hood, supra at 597 (Liacos, J., concurring). See Commonwealth v. Schuchardt, supra at 352-353 (Liacos, C.J., concurring in part & dissenting in part).