Necessity; Duress

In exceptional circumstances, a person is entitled to break the law if it is necessary to prevent a more significant harm. The necessity defense (sometimes referred to as the rule of the lesser evil or the emergency defense) recognizes that a criminal act is sometimes necessary to prevent greater harm. Necessity is very rarely a viable defense because the government has an interest in discouraging people from breaking the law. Therefore, it’s unusual for a defendant to be able to satisfy the elements of necessity.

In other cases, it may be possible to raise a duress defense, which argues that the defendant had no choice but to commit the crime in question. Because committing a crime requires a voluntary act on behalf of the defendant, this defense may help avoid a conviction when it is raised appropriately.

To learn more about the necessity or duress defense, consult with an attorney at Spring & Spring. Call (617) 513-9444 today.

Three Elements for a Necessity Defense

In order for a defendant to be found not guilty pursuant to the necessity defense, three elements must be present:

First, the defendant must have been facing an imminent and clear danger (a possible or speculative danger is insufficient);
Second, the defendant must have reasonably anticipated that breaking the law would effectively reduce or eliminate the danger; and
Third, a legal alternative did not exist which would have reduced or eliminated the danger.

If the defendant presents some evidence on each element of the necessity defense, the Commonwealth bears the burden of proving beyond a reasonable doubt that the defendant was not acting out of necessity.

Under what scenarios might a necessity defense be successful?

An individual breaks into his neighbor’s burning house to save a child who is trapped by the fire.
An individual takes away a gun from an intoxicated person who is threatening to commit a mass shooting, and illegally possesses the gun until the police arrive.
An individual with a suspended driver’s license drives a seriously injured friend to the hospital when it is too risky to wait for an ambulance to arrive.
An individual with a suspended driver’s license drives to call for help for his pregnant wife when he didn’t have his own phone and his wife was experiencing back and stomach pain after trying to use his neighbor’s phone.

A defendant can only be convicted of a crime if their actions are the result of free will. Therefore, if a defendant violated the law under duress, he cannot be found guilty.

Three elements must be established by the defendant in order for a duress defense to apply.

First, at the time of the offense, the defendant must have been under an immediate and present threat that created a reasonable fear of imminent serious bodily injury or death if he did not commit the crime;
Second, the defendant must not have had a reasonable chance to escape; and
Third, the defendant must have had no choice other than to commit the crime.

Just as with the necessity defense, if the defendant presents evidence on each element of the duress defense, the Commonwealth bears the burden of proving, beyond a reasonable doubt, that the defendant was not under duress when he committed the crime.

What Is the Defense of Duress in Criminal Law Cases?

Duress is a defense in a criminal case that argues the defendant should not be found guilty of the crime because they did not voluntarily commit the criminal act in question. The defendant committed the crime only because they were forced to do so by someone else under threat of immediate and serious harm. According to Massachusetts’ jury instructions, duress is a form of coercion, and the Commonwealth’s law holds that free will is essential to committing a crime.

Therefore, duress may excuse a defendant’s committing an act that would otherwise be considered a criminal offense when their free will is overcome. The instructions state that the jury cannot find the defendant guilty if they present evidence of duress unless the prosecution proves beyond a reasonable doubt that the defendant committed the offense and did not act under duress.

In some situations, duress may excuse a person’s committing what would otherwise be a criminal offense. Duress is a form of coercion. Our law holds that free will is essential to the commission of a criminal act, and therefore, a person may not be found guilty for an act which he (she) committed under duress. If evidence of duress is present, you may not find the defendant guilty unless the Commonwealth proves beyond a reasonable doubt that the defendant did commit the offense, and also proves beyond a reasonable doubt that the defendant did not act under duress.

Elements of a Duress Defense

Duress is a defense when the defendant:

Had an immediate and present threat against them that put them in imminent danger of death or serious bodily injury if they did not comply with the threat
Had a reasonable fear that the person threatening them would carry out the threat if they didn’t comply
Had no reasonable opportunity to escape the situation or avoid committing the crime; and
Had no choice but to commit the crime to avoid the harm they were threatened with.

According to Massachusetts’ jury instructions, the prosecution must prove one of the following three things beyond a reasonable doubt to overcome the duress defense:

The defendant did not receive a present and immediate threat which caused them to have a well-founded fear of imminent death or serious bodily injury if they did not commit the criminal act.
The defendant had a reasonable opportunity to escape.
The defendant or another person would have had a choice under the circumstances.

An experienced criminal defense lawyer can evaluate your case to determine if this defense is applicable.

When is a duress defense used?

A duress defense is available to defendants who were acting to prevent threatened harm to themselves or a third party.

Defendants who have been prior victims of domestic violence are generally entitled to introduce evidence of their domestic violence history to establish the reasonableness of their conduct in committing criminal acts. For example, a woman who injures her abusive husband during a fight can probably introduce evidence of his prior abuse to establish she defended herself in a reasonable manner.

This evidence can help show the reasonableness of the defendant’s apprehension that death or serious bodily injury was imminent, that they availed themselves of all available means to avoid physical combat, or the reasonableness of their perception of the amount of force necessary to deal with a perceived threat. The evidence can include testimony of prior acts of physical, sexual, or psychological harm or trauma, as well as testimony from an expert witness about the common patterns in abusive relationships, the nature of these relationships, and their effects.

Some criminal cases in which the duress defense has been raised in Massachusetts include situations where:

A person threatened to hurt the defendant and his family if he did not supply them with a prescription for pills
The defendant testified that he illegally transported cocaine only because individuals threatened to kill his wife and children if he refused
The defendant helped commit a robbery after another defendant fired a shotgun in his car.
The defendant testified she broke and entered a building with the intent to commit a felony and was an accessory after the fact to a murder because she was afraid of her husband, a co-conspirator in the crime.

However, not all of these defenses were successful. The court will not want to encourage people to commit crimes, so they will be hesitant to accept this defense without convincing evidence.

The Difference Between Duress and Necessity

Necessity and duress are common defenses that are sometimes raised together in criminal cases. However, they are different. Necessity argues that the criminal act was the “greater good.” There’s a choice between two evils. Even though the defendant has committed a criminal act, this is better than the alternative than what would have occurred had the defendant not committed the act.

Duress arises from the actions of other people. For example, someone may point a gun at another person and threaten to kill them unless they perform a crime. A duress defense argues that the defendant or a third party was threatened with being seriously harmed or killed if the defendant did not comply. Someone is actively threatening the defendant or a third party with harm, and the defendant has no reasonable choice but to comply to avoid the harm.

How to Raise These Defenses

If you believe these defenses may apply in your case, the best thing to do is to consult with a knowledgeable criminal defense lawyer. Your lawyer will need to present evidence of duress during your trial. The prosecution will have an opportunity to overcome this defense. The judge then gives a jury instruction about necessity or defense. This instruction explains that the prosecution must overcome the defense by proof beyond a reasonable doubt.

Limitations of Necessity and Duress Defenses

Necessity and duress are not absolute defenses. There are times when they may not be appropriate to be raised or when they will be defeated if raised. Some limitations of these defenses include the following:

Missing Element

The defense of necessity or duress can be overcome if one of the elements to raise the defense is missing. For necessity defenses, this could mean:

No imminent or clear danger: The defense will fail if the defendant only presents evidence that potential harm exists. If the danger is not clear, this is not sufficient. If the danger is only speculative, this is not sufficient. The danger must also be imminent, meaning that it is about to happen. Future threats of harm are not enough.
No reasonable anticipation that breaking the law would reduce or eliminate the danger: The defendant’s actions must be tied to the prevention of harm. If the defendant could not reasonably expect that breaking the law would reduce or eliminate the danger, the defense can be overcome.
Existence of a legal alternative: The defense will also fail if the defendant could have called the police or taken some other action that was legal that could have reduced or eliminated the danger.

A duress defense can be defeated if the prosecution can prove beyond a reasonable doubt one of the following:

No present or immediate threat that caused the defendant to have a well-founded fear of imminent death or serious bodily injury if they did not commit the criminal act: The defendant must have been specifically threatened with some harm. The defendant or a third party must be imminently facing serious bodily injury or death. This threat must have existed throughout the commission of the crime.
Reasonable chance of escape: The defendant must not have had a reasonable chance to escape in order to avoid the threatened harm.
No choice: The prosecution can overcome a duress defense if it can show that the defendant or any other person of reasonable firmness had a choice in the matter and would have been able to take other action under the circumstances besides committing the crime.

Premeditated Crimes

Both the necessity and duress defenses rely on temporal elements. There must be a limited amount of time to consider alternatives. If the crime was premeditated, the defense will be unlikely to succeed because the threat of harm may not have been imminent, or a reasonable alternative or chance to escape might have been available.

Criminal Enterprise

The duress defense is not available to a person who voluntarily enters into a criminal enterprise and willingly places themselves in a situation where they would likely be subject to coercion. For example, if a person voluntarily joins a gang, it is reasonable that they will be threatened if they refuse to carry out criminal activity, so they may not be able to raise this defense.

Reckless Placement

The duress defense is also not available to someone who recklessly places themselves in a situation where it is likely that they will be subject to such coercion. The law reasons that a defendant should not be able to use this defense when they put themselves in the dangerous situation to begin with.

An experienced criminal defense attorney can evaluate your circumstances to determine if the necessity or duress defense applies.

Potential Outcomes and Consequences

If a necessity or duress defense is successful at trial, the defendant can be acquitted of the charges, even when the jury acknowledges that the defendant committed the crime in question.

An experienced criminal defense lawyer can proactively raise this potential defense to prosecutors and try to negotiate for reduced charges. Even if the defense isn’t perfect, it is still possible for a criminal defense attorney to try to fight for a lighter sentence due to mitigating factors, similarly to how someone who raises an imperfect self-defense theory might.

Contact Us to Learn More About Your Possible Defenses

Necessity and duress are complex legal defenses. If you plan to raise them, you need a knowledgeable criminal defense lawyer who understands their nuances. Chris Spring is a Middlesex County criminal defense attorney who has successfully argued self-defense, parental discipline, and more. Call us today to speak with a compassionate legal representative.

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