Dean's Law Dictionary

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Here is just one of many comparison definitions: Duress vs. Necessity

 

 

The defense of necessity is available when a person is faced with a choice of two evils and must then decide whether to commit a crime or an alternative act that constitutes a greater evil. United States v. Richardson, 588 F.2d 1235, 1239 (9th Cir. 1978), cert. denied, 441 U.S. 931, 99 S. Ct. 2049, 60 L. Ed. 2d 658, cert. denied, 440 U.S. 947, 59 L. Ed. 2d 636, 99 S. Ct. 1426 (1979). Traditionally, in order for the necessity defense to apply, the coercion must have had its source in the physical forces of nature. The duress defense was applicable when the defendant's acts were coerced by a human force. W. LaFave & A. Scott, Handbook on Criminal Law § 50 at 383 (1972). This distinction served to separate the two similar defenses. But modern courts have tended to blur the distinction between duress and necessity. It has been suggested that, "the major difference between duress and necessity is that the former negates the existence of the requisite mens rea for the crime in question, whereas under the latter theory there is no actus reus." United States v. Micklus, 581 F.2d 612, 615 (7th Cir. 1978).

 

The theory of necessity is that the defendant's free will was properly exercised to achieve the greater good and not that his free will was overcome by an outside force as with duress. The defense of necessity is usually invoked when the defendant acted in the interest of the general welfare. For example, defendants have asserted the defense as a justification for (1) bringing laetrile into the United States for the treatment of cancer patients, Richardson, 588 F.2d at 1239; (2) unlawfully entering a naval base to protest the Trident missile system, United States v. May, 622 F.2d 1000, 1008-09 (9th Cir.), cert. denied, 449 U.S. 984, 101 S. Ct. 402, 66 L. Ed. 2d 247 (1980); (3) burning Selective Service System records to protest United States military action, United States v. Simpson, 460 F.2d 515, 517 (9th Cir. 1972).

 

Common law historically distinguished between the defenses of duress and necessity. Duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law. While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils. Thus, where A destroyed a dike because B threatened to kill him if he did not, A would argue that he acted under duress, whereas if A destroyed the dike in order to protect more valuable property from flooding, A could claim a defense of necessity. See generally LaFave & Scott 374-384.

 

Modern cases have tended to blur the distinction between duress and necessity. Many courts discard the labels "duress" and "necessity," choosing instead to examine the policies underlying the traditional defenses. See 190 U.S. App. D.C., at 152, 585 F.2d, at 1097. The defenses were designed to spare a person from punishment if he acted "under threats or conditions that a person of ordinary firmness would have been unable to resist," or if he reasonably believed that criminal action "was necessary to avoid a harm more serious than that sought to be prevented by the statute defining the offense." Id., at 152-153, 585 F.2d, at 1097-1098. The Model Penal Code redefines the defenses along similar lines. See Model Penal Code § 2.09 (duress) and § 3.02 (choice of evils). Under any definition of these defenses one principle remains constant: if there was a reasonable, legal alternative to violating the law, "a chance both to refuse to do the criminal act and also to avoid the threatened harm," the defenses will fail. LaFave & Scott 379. See also R. I. Recreation Center, Inc. v. Aetna Casualty & Surety Co., 177 F.2d 603, 605 (CA1 1949) (a person acting under a threat of death to his relatives was denied defense of duress where he committed the crime even though he had an opportunity to contact the police); People v. Richards, 269 Cal. App. 2d 768, 75 Cal. Rptr. 597 (1969) (prisoner must resort to administrative or judicial channels to remedy coercive prison conditions); Model Penal Code § 2.09 (1) (actor must succumb to a force or threat that "a person of reasonable firmness in his situation would have been unable to resist"); id., § 3.02 (1) (actor must believe that commission of crime is "necessary" to avoid a greater harm); Working Papers 277 (duress excuses criminal conduct, "if at all, because given the circumstances other reasonable men must concede that they too would not have been able to act otherwise"). Clearly, in the context of prison escape, the escapee is not entitled to claim a defense of duress or necessity unless and until he demonstrates that, given the imminence of the threat, violation of the law was his only reasonable alternative. See United States v. Boomer, 571 F.2d 543, 545 (CA10), cert. denied sub nom. Heft v. United States, 436 U.S. 911 (1978); People v. Richards, 269 Cal. App. 2d 768, 75 Cal. Rptr. 597 (1969).

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