Justification– Necessity

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o       Criminalconduct is considered justified by necessity when the Δ reasonably believes that the conduct was necessary to avoid some harm to society that would exceed the harm caused by the conduct
§        Measured by an objective standard
o       Elements for Necessity
§        Greater Harm Element – harm sought to be avoided must be greater than the harm committed
§        There must be no 3rd alternative that would also avoid the harm and which would be less criminal or non-criminal
§        Imminence – harm must be imminent and not merely speculative future harm
§        Situation must not have been caused by the Δ himself through carelessness or recklessness putting himself in a position in which an emergency would arise
o       Prerequisites for a Necessity Defense
§        Faces with a choice of evils and chose the lesser evil
§        Acted to prevent imminent harm
§        Reasonably anticipated a direct causal relationship between conduct and harm to be averted
§        Had no legal alternatives to violating the law
o       Examples of Necessity
§        Prisoners escaping a burning prison
§        Person lost in the woods could steal food to survive starvation
§        Property could be destroyed to prevent the spread of a fire
o       The necessity defense was not intended as justification for illegal acts taken in indirect political protest or civil disobedience.
·        Excuse – Duress
o       Elements
§        Need a threat by a 3rd person
§        That produces a reasonable fear in the Δ
§        That he will suffer immediate AND imminent
§        Death or serious bodily injury
§        Cannot have a completely successful duress defense if you take the life of a completely innocent person
o       Duress is a defense based on fear
§        Threat must produce a reasonable fear in the Δ
o       Standard => Δ ought to be excused when he is the victim of a threat that a person of reasonable moral strength could not fairly be expect to resist
§        MPC Language – a person of reasonable firmness in his situation would have been unable to resist
o       Duress is an excusable defense, not a justifiable one.  Distinction reveals that criminal act performed under duress are condoned by society rather than encouraged
o       Duress v. Necessity
§        Source of the Evil
·        With Duress, the source of the pressure comes from another human being
·        With Necessity, the source of the pressure comes from circumstances or events
§        Duress is an excuse and necessity is a justification
§        Necessity = Duress of Circumstances
§        Duress = Coercion Defense
·        Excuse – Intoxication
o       May be caused by any substance; alcohol, drugs, medicine
o       May be raised as a defense if the intoxication negates the mens rea required for the target crime
o       Employs a subjective standard, so the level of intoxication does not have to be “reasonable”
o       Voluntary v. Involuntary Intoxication
§        Voluntary (Self-Induced) Intoxication
·        Intentional taking without duress of a substance known to be intoxicating
·        Relevancy to Specific v. General Intent Crimes
o       Good defense for Specific Intent Crimes
§        Evidence submitted must establish that the intoxication prevented Δ from formulating the requisite intent
o       Bad defense for General Intent and Strict Liability Crimes
§        Note: Rape is a General Intent Crime in every American jurisdiction
§        Involuntary Intoxication
·        Elements
o       Taking of an intoxicating substance
§        Without knowledge of its nature; OR
§        Under direct duress imposed by another; OR

§        Pursuant to medical advice while unaware of the substance’s intoxicating effect

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