Necessity and Duress

Question 1

Common Law Necessity

Answer 1

• D committed crime to avoid a greater harm, and made a rational choice in selecting the lesser of two evils
  1) D faces a choice of evils
  2) No apparent reasonable alternatives
  3) Imminent harm
  4) D chooses lesser evil
  5) D did not create necessity
  6) No law that prohibits the necessity defense the situation

Question 2

MPC Necessity

Answer 2

• Accused believes that conduct will avoid harm or evil or another that is greater than the harm caused
• When accused is reckless or negligent in bringing about situation, this defense is not available

Question 3

Necessity

Answer 3

• usually raised as defense when conduct is justified by need to avoid a greater evil by engaging in a lesser, but nonetheless prohibited conduct
• under common law, only allowed when facing imminent injury with no viable alternative other than violation of the law
• duress by contrast is an excuse to human threats

Question 4

TN necessity

Answer 4

Conduct justified if person:

1) reasonably believes the conduct is immediately necessary to avoid imminent harm and
2) desirability and urgency of avoiding the harm clearly outweigh , by ordinary standards of reasonableness, the harm sought to be avoided by the law proscribing the conduct

Question 5

Common Law duress

Answer 5

1) threat of imminent serious bodily harm or death to himself or third party (close friend, relative)
2) a reasonable belief that imminent threat will be carried out (no way out)
3) there is no reasonable means of escape
4) D must have become involved in the situation through no fault of his own
(potential element: D must submit to proper authorities after attaining a position of safety)
*At common law, duress and necessity could not be used as defenses for murder

Question 6

MPC duress

Answer 6

• Defendant committed offense due to unlawful force that a reasonable person would not be able to resist
• No defense if recklessly or negligently put himself into situation that would subject him to duress

Question 7

TN duress

Answer 7

• Defense when person commits a crime because of the threat of present, imminent death or serious bodily injury by another if the crime is not committed. Threat must be continuous and unavoidable
• Desirability of avoiding the harm must clearly outweigh, by ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct