Duress and Necessity Compared

Duress and Necessity Compared

Two defenses can grow out of a single frightening episode, and the Model Penal Code keeps them apart. Necessity, the choice of evils, justifies conduct that is the lesser evil, so the law approves of what the actor did because abstaining would have produced a worse result. Duress excuses an actor who yielded to unlawful force that a person of reasonable firmness could not have resisted, so the law still regards the conduct as wrong and declines to blame the person who committed it.¹ This section returns to the justification-and-excuse distinction that opened this chapter, shows how it sorts real fact patterns, and then reads § 2.09(4), the clause that lets the two defenses coexist.

The difference lies in the question each defense asks. Necessity asks about outcomes: whether the harm the actor caused was less than the harm avoided, so that the choice itself was defensible. The source of the pressure does not matter, and it can be a storm or a person. Duress asks about the actor's power to resist, and it demands a particular source, a threat from another human being that operates on the actor's mind.² The blizzard hiker from the opening of this chapter shows the gap. No person threatened him, so duress is unavailable, yet his necessity claim stands on the weight of what he saved against what he took. A threat to property produces the same split. Under the personal-injury requirement, a bookkeeper who helps a coworker embezzle $1,000 because the coworker threatens to destroy a priceless painting has no duress claim, and any useful claim would be one of necessity.³

The two defenses diverge because they measure different things. Necessity compares harms, and the comparison is the whole justification: the actor caused less than he avoided. Duress makes no such comparison. Its rationale is that an actor who has done the act the crime requires, with the mental state the crime requires, nonetheless "lacked a fair opportunity to avoid acting unlawfully" under a threat too severe to be resisted.⁴ Some writers have argued that duress should apply even when the harm done equals or exceeds the harm threatened, and the Code, while rejecting the fully subjective version of that argument, built its excuse on an objective test of reasonable firmness rather than on a balance of harms.⁵ That structure explains why the defenses part company on homicide. A killing of an innocent person inflicts harm at least as great as the death the actor was threatened with, so the conduct is not the lesser evil and necessity has nothing to justify. The actor must rely on duress, with every limit the governing statute attaches to it.⁶

Section 2.09(4) states how the two defenses relate: when the conduct of the actor would otherwise be justifiable under § 3.02, § 2.09 does not preclude that defense.⁷ The clause works as a savings provision, preserving a justification claim that exists independently of whatever happens to the duress claim. Its reason follows from the structure of § 2.09. The limits in that section were written for an excuse, and some of them track the actor's fault in creating the predicament, as the bar on recklessly placing oneself in a situation of probable duress does.⁸ A justification claim asks whether the conduct was the lesser evil, and it is governed by § 3.02 and whatever conditions that section itself carries. Without subsection (4), a reader might suppose that § 2.09 occupies the whole field of conduct prompted by another person's threat and carries its limits into every such claim. With it, the necessity question is asked on its own terms.

The window version shows why the savings clause matters. If a duress claim on those facts failed on the exposure bar of § 2.09(2), the necessity claim would remain, because that bar limits the duress defense and subsection (4) says § 2.09 does not preclude the justification.⁹ The bystander version shows the converse. With no lesser evil to point to, the actor has no independent justification to preserve, and the claim rises or falls under § 2.09(1) and (2).¹⁰

In practice the line can blur, because some courts describe duress in justification terms. In State v. Heinemann, a Connecticut decision applying a statute modeled on the Code, the court repeated earlier language that conduct under duress is justified because the defendant avoided a harm of greater magnitude. It then directed the fact finder to measure the defendant's characteristics against the coercer and to weigh the severity of the offense demanded, the nature of the force threatened, and the alternatives available.¹¹ That framing resembles a choice-of-evils comparison. An older view pointed the same way: since common-law duress was unavailable for murder, the act was almost always less harmful than the threat, and duress looked like the choice of the lesser harm.¹² The Supreme Court held in Dixon v. United States that, at least for federal criminal law, duress is an excuse, and that classification is now widely accepted.¹³ Because subsection (4) presupposes two separate defenses, a claim that an opinion describes in justification language should still be tested by the elements of its own defense.

Students lose this issue when they let a failed duress claim end the analysis, because subsection (4) keeps a separate justification open whenever the conduct would otherwise be justifiable under § 3.02.¹⁴ The reverse mistake imports necessity's comparison of harms into a duress problem, where the question is whether a person of reasonable firmness in the actor's situation could have resisted.¹⁵