Many states and the federal courts recognize defenses to criminal charges in limited circumstances when the defendant was under duress or committed the criminal offense out of necessity to avoid death or serious bodily injury. The definitions for these affirmative defenses vary from state to state and in the federal courts, with some jurisdictions treating them as the same defense, and others making the distinction that duress applies when a defendant committed the crime because someone forced them to do it, and necessity applies when the defendant was confronted with bad alternatives in an emergency situation and chose the best alternative.

The elements of the defense of duress or necessity are that (1) the defendant was facing an unlawful and imminent threat sufficient to create a reasonable apprehension of death or serious bodily injury; (2) the defendant had not recklessly or negligently placed himself in a situation where he would likely be forced to commit a criminal act; (3) the defendant had no reasonable, legal alternative to violating the law; and (4) the defendant could have reasonably believed that the commission of the criminal act would avoid the threatened harm.

Duress and necessity defenses to criminal charges may be located in a state’s court opinions or cases (common law) or in its statutes—usually in the penal or criminal code. Many states have pattern or form jury charges (questions and instructions) and include a question that may be given to the jury to determine whether the defendant’s conduct is excused by the defense of duress or necessity.

In Kentucky, the defenses of duress and necessity are recognized as potential affirmative defenses to criminal charges under certain circumstances. These defenses can be invoked when a defendant claims that they committed a crime to avoid death or serious bodily injury. The elements required for these defenses typically include an unlawful and imminent threat that would cause a reasonable person to fear death or serious bodily injury, the absence of reckless or negligent behavior leading to the situation, no reasonable legal alternative to committing the crime, and a belief that the criminal act would prevent the threatened harm. Kentucky law, through its statutes and case law, provides the framework for these defenses. The Kentucky Penal Code outlines the conditions under which these defenses may be applicable. Additionally, Kentucky courts have established precedents through case law that further define and refine the application of duress and necessity defenses. During a trial, the jury may be given specific instructions, derived from pattern or form jury charges, to determine if the defendant's actions can be legally excused based on these defenses.