Neb. Rev. Stat. » Chapter 28
Nebraska Revised Statutes

Neb. Rev. Stat. § 28-1407 (2026)

Justification; choice of evils

✓ current as of July 2026
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(1) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable if:

(a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;

(b) Neither sections 28-1406 to 28-1416 nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(c) A legislative purpose to exclude the justification claimed does not otherwise plainly appear.

(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

Notes of Decisions
Cited in 15 cases (2 in the last 5 years), 1986–2024 · leading case: State v. Custer, 292 Neb. 88 (Neb. 2015).
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State v. Custer, 292 Neb. 88 (Neb. 2015). · cites it 6× “[8] Custer argues that although the proposed instruction is not included in the record, it is clear from the arguments of counsel at the jury instruction conference that Custer requested an instruction that followed the language of Neb. Rev. Stat. § 28-1407 (Reissue 2008).”
State v. Schmaltz, 304 Neb. 74 (Neb. 2019). · cites it 12× “Accordingly, Schmaltz sought an instruction on the so-called choice of evils defense as codified at Neb. Rev. Stat. § 28-1407 (Reissue 2016).”
State v. Mowell, 672 N.W.2d 389 (Neb. 2003). · cites it 6× “According to Mowell, the evidence at trial established that Cade had placed him in fear of his life, and under Neb. Rev. Stat. § 28-1407 (Reissue 1995), the jury should have been presented with a choice of evils instruction, whereby they could have found his possession of a…”
State v. Cozzens, 490 N.W.2d 184 (Neb. 1992). · cites it 7× “Each defendant, in cases consolidated for disposition in this court, contends that the county court for Douglas County, as the trial *567 court, erred by (1) refusing to grant a jury trial as requested by each defendant and (2) disallowing the justification or “choice of evils”…”
State v. Todd, 296 Neb. 424 (Neb. 2017). · cites it 2× “In its motion, the State sought to prohibit Todd from “offering evidence, argument or comment in the presence of the jury [regarding a] choice of evils defense pur- suant to Neb. Rev. Stat. § 28-1407 .” Todd wished to present a “choice of evils” defense in which she sought to…”
State v. Clayburn, 389 N.W.2d 314 (Neb. 1986). · cites it 2× “Neb. Rev. Stat. § 28-1407 (2) (Reissue 1985) provides: When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a…”
Toops v. State, 643 N.E.2d 387 (Ind. Ct. App. 1994). “For similar provisions also see Neb.Rev.Stat. § 28-1407; Or.Rev.Stat. § 161.”
State v. George, 424 N.W.2d 350 (Neb. 1988). · cites it 2× “Assigned as errors are the failure of the evidence to support the conviction and the failure of the trial court to find that the defendant acted in self-defense under the provisions of Neb. Rev. Stat. § 28-1407 (l)(a) (Reissue 1985).”
State v. Beal (Neb. Ct. App. 2014). · cites it 17× “The justification or choice of evils defense is codified in Nebraska at Neb. Rev. Stat. § 28-1407 (Reissue 2008).”
State v. Smith (Neb. Ct. App. 2023). · cites it 6× “(c) Defense of Necessity Smith’s third claim of ineffective assistance of trial counsel is that counsel failed to assert the defense of necessity as outlined in Neb. Rev. Stat. § 28-1407 (Reissue 2016) and proceed to trial on that defense.”
State v. LeFever (Neb. Ct. App. 2024). · cites it 4× “He contends the defense of justification under Neb. Rev. Stat. § 28-1407 (Reissue 2016) and NJI2d Crim 7.”
State v. Aguilar (Neb. Ct. App. 2015). · cites it 4× “The “choice of evils” defense, also referred to as the “justification defense,” is contained in Neb. Rev. Stat. § 28-1407 and states in applicable part the following: (1) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is…”
Show all 15 citing cases →
— Neb. Rev. Stat. § 28-1407(1) — 3 cases
State v. Schmaltz, 304 Neb. 74 (Neb. 2019). “Accordingly, Schmaltz sought an instruction on the so-called choice of evils defense as codified at Neb. Rev. Stat. § 28-1407 (Reissue 2016).”
State v. Smith (Neb. Ct. App. 2023). “(c) Defense of Necessity Smith’s third claim of ineffective assistance of trial counsel is that counsel failed to assert the defense of necessity as outlined in Neb. Rev. Stat. § 28-1407 (Reissue 2016) and proceed to trial on that defense.”
State v. Beal (Neb. Ct. App. 2014). “The justification or choice of evils defense is codified in Nebraska at Neb. Rev. Stat. § 28-1407 (Reissue 2008).”
— Neb. Rev. Stat. § 28-1407(1)(a) — 3 cases
State v. Schmaltz, 304 Neb. 74 (Neb. 2019). “Accordingly, Schmaltz sought an instruction on the so-called choice of evils defense as codified at Neb. Rev. Stat. § 28-1407 (Reissue 2016).”
State v. Beal (Neb. Ct. App. 2014). “The justification or choice of evils defense is codified in Nebraska at Neb. Rev. Stat. § 28-1407 (Reissue 2008).”
State v. Dlouhy (Neb. Ct. App. 2015).
— Neb. Rev. Stat. § 28-1407(1)(c) — 1 case
State v. Beal (Neb. Ct. App. 2014). “The justification or choice of evils defense is codified in Nebraska at Neb. Rev. Stat. § 28-1407 (Reissue 2008).”
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