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The National Trial Lawyers
Greater Lowell Bar Association

Necessity; Duress

In exceptional circumstances, a person is entitled to break the law if it is necessary to prevent a larger 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 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.

A defendant can only be convicted of a crime if his 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.

A duress defense is available to defendants who were acting to prevent threatened harm to 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 defendant who has been beaten repeatedly and seriously over the course of many years may reasonably believe she is about to be seriously injured or killed by her abuser should be allowed to share the history of abuse with the jury so the jurors can evaluate whether her fears of being injured or killed were reasonable.

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