Duress and Necessity

Duress and necessity center on a threat of immediate harm and argue that an act, which is typically illegal, doesn’t constitute a crime in a particular instance because of the circumstances surrounding it.
While there are instances of courts merging the two into a single defense, the policies behind them have subtle differences and have historically been treated as separate defenses.

Necessity is often described as a choice between two evils. Defendants argue that had they not committed the illegal act, something worse would have happened. For example, you live in a rural area with poor ambulance services and your husband is having a heart attack. You choose to drive him to the hospital as fast as you can and do not cause any injuries in the process. Should you be pulled over and charged at a later date with careless driving, you may be able to argue that any harm you may have caused by your driving was less than the harm you may have prevented (your husband’s death) by committing the illegal act.

While necessity is based on the actions of the defendant, duress stems from the actions of others. A duress defense can be argued when an individual is coerced into an illegal act by threats of serious injury or death and has a reasonable belief that these threats will be carried out. A prime example would be one person forcing another to commit a crime at gun point, or someone threatening to kill your wife if you don’t rob the local bank branch.

The success or failure of both of these defenses rely on the agreement of the evidence and whether or not the defendant had a reasonable alternative to breaking the law.

Published on October 15, 2015