12.5 Duress & Necessity

Duress & Necessity

Doctrinal Foundation: When an individual engages in conduct meeting the statutory elements of a crime due to overwhelming external pressures or governmental overreach, the criminal law evaluates whether punishment is morally warranted or legally excused. On the California First-Year Law Students' Examination (FYLSE), candidates must master the boundary separating duress (an excuse compelled by human coercion) from necessity (a justification compelled by natural physical pressures), navigate the non-negotiable rule that duress is never a defense to murder, apply the competing subjective and objective tests for entrapment, and classify mistake of fact across specific, general, and strict liability offenses.

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I. Duress: Coercion by Human Agency

Duress is an affirmative defense of excuse. It recognizes that when an individual is subjected to an unlawful, overwhelming human threat of immediate death or severe bodily harm, their volition is constrained such that criminal punishment would be unjust and ineffective as a deterrent.

                          ┌──────────────────────────────────────┐
                          │     Four Elements of Common Law      │
                          │               DURESS                 │
                          └──────────────────┬───────────────────┘
                                             │
         ┌──────────────────┬────────────────┴──────────────────┬──────────────────┐
         ▼                  ▼                                   ▼                  ▼
  [Human Threat]     [Imminent Peril]                   [No Safe Escape]      [EXCLUSION]
- Unlawful threat    - Immediate death                  - No opportunity to   - NEVER A DEFENSE
  by another person    or serious bodily harm             retreat, call police  TO INTENTIONAL
- Directed at actor  - Threat must be present             or avoid crime        HOMICIDE (MURDER)
  or family member     and operating right now            without death         - Complete Bar

1. Elements of Duress

To establish the defense of duress at common law, the defendant must prove four distinct requirements:

1. Human Threat of Death or Grievous Bodily Harm: The coercion must originate from another human being threatening death or serious bodily injury. Threats directed toward property, financial well-being, or reputation (e.g., blackmail) never establish duress.
2. Target of the Threat: The threat must be directed against the defendant, an immediate family member, or (under modern statutes and Model Penal Code § 2.09) any third person.
3. Imminence and Reasonableness: The defendant must harbor a well-grounded, objectively reasonable belief that the threat of death or serious injury is immediate, real, and impending. A threat of future harm ("Commit this burglary or I will shoot you next week") fails the imminence requirement.
4. No Reasonable Opportunity to Escape: The defendant must have had no safe, realistic avenue of escape, and no opportunity to alert law enforcement or avoid committing the crime without suffering immediate death or grievous harm.

2. The Universal Limitation: Duress NEVER Defends Intentional Murder

The single most critical rule tested on the FYLSE regarding duress is absolute and unforgiving: DURESS IS NEVER A DEFENSE TO INTENTIONAL HOMICIDE.

• The Blackstone Principle: As Sir William Blackstone famously observed, a person confronted with the choice of dying or killing an innocent person "ought rather to die himself, than escape by the murder of an innocent."
• Application to Degrees of Murder: Duress will not acquit an actor of first-degree premeditated murder or second-degree common law murder. An individual cannot lawfully choose to sacrifice an innocent life to preserve their own.
• Application to Felony Murder (The Substantive Felony Exception): A vital exam distinction exists regarding felony murder:
  • If an actor is coerced under duress to participate as a getaway driver or look-out in an armed robbery, duress is a valid defense to the underlying felony (robbery).
  • If the duress defense successfully negates the underlying felony, the actor cannot be convicted of felony murder, because the predicate felony has been legally excused.
  • However, if the coerced actor personally executes a victim, duress is unavailable for the homicide.

[!WARNING] The Gang Affiliation / Prior Fault Exception: Duress is completely forfeited if the defendant voluntarily placed themselves into a situation where it was foreseeable that they would be subjected to criminal coercion (e.g., voluntarily joining an armed street gang, drug syndicate, or organized crime syndicate). A gang member ordered to execute a robbery under threat of death cannot raise duress.

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II. Necessity: The "Choice of Evils" Justification

While duress involves an excuse compelled by unlawful human coercion, necessity is a justification compelled by physical or natural forces.

                         ┌──────────────────────────────────────┐
                         │   Duress vs. Necessity Comparison    │
                         └──────────────────┬───────────────────┘
                                            │
         ┌──────────────────────────────────┴──────────────────────────────────┐
         ▼                                                                     ▼
    [DURESS: Excuse]                                                    [NECESSITY: Justification]
- Source: Human coercion and threats                                 - Source: Non-human natural physical forces
  ("Steal that car or I shoot you")                                    (Wildfires, storms, starvation, floods)
- Conduct is WRONGFUL, but actor excused                             - Conduct is RIGHTFUL (Lesser of two evils)
- NEVER a defense to murder                                          - Objective balance: Harm avoided > Harm caused
- Complete bar if voluntary gang membership                          - Inapplicable if actor created the emergency

1. Elements of Common Law Necessity

Under traditional common law and modern choice-of-evils jurisprudence (Model Penal Code § 3.02), necessity requires:

1. Natural Physical Pressure: The emergency must be caused by non-human physical forces of nature (e.g., storms, blizzards, wildfires, shipwrecks, disease, sudden medical emergencies, starvation).
2. Prevention of Greater Harm: The harm the defendant seeks to avoid must be objectively greater than the harm caused by the criminal conduct (e.g., burning a controlled backfire across a neighbor's private property to save a town from a wildfire, or breaking into a mountain cabin to survive a blizzard).
3. Imminence and Lack of Lawful Alternative: The danger must be imminent, and no lawful alternative existed to avert the catastrophe.
4. Defendant Free from Fault: The defendant must not have been negligent or reckless in creating or bringing about the emergency situation.

2. The Starvation and Homicide Limitation (Regina v. Dudley and Stephens)

Can necessity justify killing an innocent human being to preserve the lives of others? In the legendary case Regina v. Dudley and Stephens (14 Q.B.D. 273 (1884)), four shipwrecked sailors were stranded in an open lifeboat 1,000 miles from land without food or water. After eighteen days of starvation, two sailors killed and consumed the unoffending cabin boy. The court held:

• Necessity is NEVER a defense to intentional homicide.
• The objective balance of harms cannot weigh the value of one innocent human life against another.

3. Legislative Preclusion

Necessity is unavailable if the governing legislature has already addressed the competing values and resolved the conflict through statutory enactments. In United States v. Oakland Cannabis Buyers' Cooperative (532 U.S. 483 (2001)), the U.S. Supreme Court held that the federal Controlled Substances Act precluded the defense of medical necessity for distributing marijuana, because Congress had already classified cannabis as having no accepted medical use.

Comparison Table: Duress vs. Necessity

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