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 Georgia, the defenses of duress and necessity are recognized under certain circumstances to excuse criminal conduct when a defendant commits an offense to avoid death or serious bodily injury. The Georgia Code does not explicitly define these defenses in its statutes, but they have been developed through case law. The elements required for these defenses generally align with the principles outlined: the defendant must have been under an unlawful and imminent threat of death or serious bodily injury, not have placed themselves in the situation through recklessness or negligence, had no reasonable legal alternative, and reasonably believed that the criminal act was necessary to avoid the harm. Georgia courts have considered these defenses in various cases, and they are also reflected in pattern jury instructions which guide jurors on how to consider these defenses when presented as part of a criminal trial. It is important for defendants claiming duress or necessity as a defense to understand that these are affirmative defenses, meaning the burden is on the defendant to prove the defense to the satisfaction of the jury.