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Criminal charges

defenses—duress and necessity

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 Texas, both duress and necessity are recognized as affirmative defenses to criminal charges under certain circumstances. According to the Texas Penal Code, the defense of duress (Section 8.05) can be invoked when an individual commits an offense because they were compelled to do so by threat of imminent death or serious bodily injury to themselves or another. The necessity defense (Section 9.22), on the other hand, applies when the defendant argues that their conduct was immediately necessary to avoid imminent harm, and that the harm sought to be avoided by the criminal act was greater than the harm resulting from the act itself. The elements required for these defenses generally align with the four elements you've described: facing an imminent threat, not having placed oneself in that situation through recklessness or negligence, lacking a reasonable legal alternative, and reasonably believing that the criminal act would prevent the threatened harm. These defenses are not absolute and cannot be used in all situations; for example, they are not available for certain crimes. Additionally, Texas does provide pattern jury charges to guide jurors in determining whether a defendant's conduct may be excused by duress or necessity.


Texas Statutes & Rules

Federal Statutes & Rules

18 U.S.C. § 3282 - Offenses not capital
This statute is relevant as it outlines the general statute of limitations for federal non-capital offenses, which could affect the timing of asserting a duress or necessity defense.

Under 18 U.S.C. § 3282, no person can be prosecuted, tried, or punished for any non-capital offense unless the indictment is found or the information is instituted within five years after the offense has been committed. This statute is important for defendants considering raising a duress or necessity defense, as it sets a time limit on when charges can be brought, which in turn affects when a defense can be asserted.

Model Penal Code § 2.09 - Duress
Although not a federal statute, the Model Penal Code's section on duress is influential and often looked to by federal courts when considering the defense of duress.

The Model Penal Code § 2.09 states that it is an affirmative defense that the defendant engaged in the proscribed conduct because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.