Duress | Necessity

What are the elements for Common Law Duress? Have to meet all elements

Another person threatened to kill or inflict GBH against the actor or family member. If D breaks into victim's home because a pit bull is chasing him down the street, he might be able to use the defense of necessity, but not duress. Actor reasonably believed the threat was genuine. Death or serious bodily harm; aka deadly force. Threat to property, reputation, economic hardship is insufficient. Threat was imminent and impending. Must be operating on the actor's will at the time of the criminal act. Has to occur immediately unless the actor complies. State v. Rosillo: a police informant agreed to testify against a drug dealer. Before trial, gunman threatened him and he was nearly run over in the street. As a consequence of his fear for his life, he gave false testimony at trial. He was prosecuted for perjury and claimed duress. The court held that he was not in fear of imminent harm. There was no reasonable escape from the threat. At common law, the threat had to be against the defendant or the defendant's family. This has since changed; many courts have broken from this limitation. United States v. Haney is an example. Actor was not at fault for exposing himself to the threat. If D knowingly joins a violent gang, and he later commits a crime under threat of immediate death from another gang member, he can't claim duress. Criticism is that there should be a causal link between joining the gang and D's crime. So a better case would be if D actually heard of inductees being required to commit criminal acts to join, and D does one of those acts, D can't claim duress.

Necessity: "Choice of Evils" defense

As a result of some natural (non-human) force or condition, he must choose between violating a relatively minor offense, on the one hand, and suffering (or allowing others to suffer) substantial harm to person or property, on the other hand.  Examples: Person drives on a suspended license to get their loved one to a hospital. Motorist speeds so he can pass a car and move to the right lane so an ambulance can pass. Law will not allow duress as a complete defense of Murder. Argue duress as a mitigating factor for manslaughter, not murder; try to reduce down.

Condonation and Consent

Consent won't trump law. There are limits to consent - Sports (Boxing/Hockey/Football) Condonation - Forgiveness Even if victim doesn't want to prosecute Example - BP paying damages for oil spill; bring the community whole; but do not criminally prosecute

What are the elements for Necessity?

Faced with a clear and imminent danger; D must expect, as a reasonable person, that his action will be effective in abating the danger he seeks to avoid; No legal way to avoid the harm; The harm that the defendant will cause must be less that the harm that he seeks to avoid. Defendant must not have created the conditions of his dilemma.

What is the difference between Justification and Excuse?

Justification Focuses on the Act Society approves of defendant's act Deserves neither criminal liability or censure Ex: Self-Defense Excuse Focuses on the Actor Society does NOT approve of D's act Withholds criminal sanctions Ex: Insanity

Historical Perspective on Duress and Necessity

These defenses are based upon principles of justification or excuse. In other words, is there a defense because D's actions are justified or excused. Duress: D is threatened by another person with death or serious injury to commit the crime. Necessity: the pressure to commit the offense comes from a non-human source. "Choice of Evils": usually refers to necessity, but many judges and jurisdictions will use the terms interchangeably. Act of G-D Example: If D burns down another's dwelling because someone has threatened him with GBH, this is duress. But if D burns down someone's house to create a firebreak to stop a massive wildfire, then D can claim necessity.