Criminal Law-Chapter 16: Duress and Necessity

Elements of the Necessity defense:

1. Act charged as criminal must have been done to prevent a significant evil; 2. No adequate alternative to the commission of the act; 3. Harm caused by the act must be disproportionate to the harm avoided; 4. The accused must entertain a good-faith belief that his act was necessary to prevent greater harm; 5. Belief must be objectively reasonable under all the circumstances; and 6. The accused must not have substantially contributed to the creation of the emergency.

Duress defense may be used when the following circumstances occur:

1. There is a threat of immediate infliction, upon the defendant, of death or bodily harm; AND 2. The defendant has a well-grounded fear that the threat will be carried out; AND 3. The defendant lacks a reasonable opportunity to otherwise avert the threatened harm Some courts mention additional elements of the duress defense: 1. Situation must have arisen without the fault or negligence of the defendant; 2. The threat must be present, imminent, and impending when the crime committed under duress is carried out.

Condonation

A common law percept that prohibits the private settlement of criminal cases. In the course of plea bargaining it has become commonplace to seek settlements outside of criminal prosecution for minor offenses and even the more serious property offenses, resulting in the dismissal of criminal case. 3. The prosecutor or judges without specific authorization do this, primarily when there is no complaint from either side. The prosecutor or judge simply agrees to dismiss or does dismiss the case. 4. The prosecutor or judge in doing so may recognize with or without stating that private satisfaction has ben made.

Rationale From Allowing The Duress Defense

A person who is threatened with death or serious bodily harm is allowed to commit a lesser crime rather than lose her own life. This is because there is normally a duty to persevere one's own life. The defense is not for one who has reasonable other choices.

Necessity

Choice of evils defense. Necessity is used when the danger is caused by physical forces beyond the defendant's control.

U.S. vs. Haney

Establishes the defense as applicable to a third person when the defendant acted so as to preserve the life of the third person.

Duress

Occurs when a person coerce another person to commit a crime.

Consent

Sometimes a defense but many times it is not. May be a defense to what would otherwise be a crime in sports.

Rationale for Allowing the Necessity Defense

There are different situations, which arise through acts of nature that cannot be avoided. The gist of the defense is that people must be able to react to an immediate threat as it presents itself and not so desist from a crime that a greater harm results. This choice that must be made is why this defense is called the "choice of evils" defense.

Where Consent Can Not Constitute a Defense

Two persons may not consent to fight a duel; to play Russian Roulette; to kill one another in a mutual suicide pact. There are many other situations. A matter of public policy to further the public good and prevent unnecessary mutilation or death.