Justification– Necessity

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       NO DEFENSE OF NECESSITY FOR TAKING THE LIFE OF ANOTHER

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