From Common Law to the Code

From Common Law to the Code

The choice-of-evils defense in Model Penal Code § 3.02 has an older ancestor, and the two differ on one variable: where the danger comes from. Under the traditional view, the pressure had to come from the physical forces of nature, such as storms and privations, rather than from other human beings.¹ When the pressure came from people, the defense, if it applied at all, went by the name duress, meaning that the actor was coerced by someone else's threat into committing the offense.² Courts that follow the common-law approach still state the defense in those terms, and a jury instruction that describes the threatened harm as produced by natural forces is a sign of that approach.³

The division by source had a logic, which becomes visible once you ask what each doctrine examines. The common law took the family of instant emergency decisions and gave each member its own doctrine: necessity for the lesser-of-two-evils choice, duress for the actor ordered to commit a crime, and self-defense for the actor facing an attacker.⁴ When Martina tells Ken to steal Joan's lawn mower or be killed, a wrongdoer has commanded the offense, and the live question is whether Ken can fairly be blamed for yielding.⁵ When a storm or a fire drives the actor, nobody has commanded anything, and the live question is only whether the lesser evil was the better choice. Sorting by source was a way of sending each case to the doctrine that asked the right question. The sorting was never airtight, however, since the modern cases have tended to blur the line between duress and necessity.⁶ Even in a text that treats necessity as the product of natural rather than human forces, Mrs. D has necessity, not duress, as a defense to criminal trespass when C threatens to stab her unless she submits to him and she runs into a stranger's house to telephone the police. Her conduct is an escape rather than compliance with a demand, and that is the reaction duress does not anticipate.⁷

Section 3.02 removes the source question altogether. It makes justifiable conduct that the actor believes necessary to avoid a harm or evil to himself or to another, subject to the comparison of harms and the two legislative-displacement conditions, and it says nothing about what produced the danger.⁸ Most modern recodifications follow the Code in this respect, though not all do.⁹ The reason for dropping the limit follows from the shape of the test. A defense built on comparing the harm avoided with the harm the offense targets has no use for the origin of the danger, because a fire set by lightning and a fire set by an arsonist threaten the same houses, and the loss that might justify a sacrifice is the same in both.

The gap in the second version of the hypothetical is the reason the Code's broader wording matters. Duress under the Code asks whether the actor was coerced by a threat of unlawful force against himself or another, one that a person of reasonable firmness in his situation would have been unable to resist, so it speaks to people made to commit offenses and not to people who choose an offense to escape a danger.¹⁰ Students who reason that necessity is unavailable whenever a person created the danger are applying the abandoned rule rather than the Code's.

Two features survive the change. The first is the requirement, taken up in the previous section, that the pressure operate on the actor's mind and not on his body, so that the earthquake victim who stumbles into another climber never reaches the defense at all.¹¹ The Code lifts the limit on the source of the danger and leaves intact the premise that the actor chose the conduct. The second is the existence of duress as a separate defense. Section 2.09(4) provides that when conduct would otherwise be justifiable under § 3.02, the duress section does not preclude the justification.¹² The two defenses answer different questions, since duress asks whether the actor could fairly be expected to resist coercion and necessity asks whether the choice was the right one, so a single set of facts can support both.¹³ Ken, threatened with death unless he steals the lawn mower, presents the standard duress case, but nothing in § 3.02 stops him from also arguing that the harm he avoided, his own death, outweighs the harm the larceny statute targets, the loss of a lawn mower.¹⁴ The source of the danger is the departure that matters here. The Code's text also contains no express imminence requirement and no express bar on homicide, although courts that apply the defense often supply limits of their own, and later sections take up those points where they bear on the elements.¹⁵

Finally, the Code is a model, and states adapt its text when they write their own justification statutes. In People v. Archer, a Rochester city court set out the successive drafts of the justification provisions, from the Model Code's Tentative Draft No. 8 to a proposed revised New York Penal Law, because the final statute had been reworked along the way. The state draft began with a general clause making conduct justifiable unless inconsistent with the article's provisions on physical force or other law, which is not the Model Code's wording.¹⁶ Whether a given statute keeps source-neutral language, adds limits, or retains older phrasing is therefore a question about that statute's text, and on an exam the local provision controls over the Model Code's. With the source limit set aside, the first element of § 3.02(1) is the actor's own belief that the conduct was necessary, which the next section takes up.