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 Maine, the defenses of duress and necessity are recognized as potential affirmative defenses to criminal charges under limited circumstances. These defenses can be invoked when a defendant claims they committed a crime to avoid death or serious bodily injury. The defense of duress applies when the defendant was compelled to commit the crime due to force or threat by another person, while the defense of necessity is used when the defendant was faced with an emergency situation and chose the least harmful option among bad alternatives. For these defenses to be applicable, the defendant must demonstrate that they were facing an imminent and unlawful threat that could reasonably cause fear of death or serious bodily injury, that they did not recklessly or negligently place themselves in the situation, that there were no reasonable legal alternatives to committing the crime, and that the criminal act was committed with a reasonable belief that it would prevent the threatened harm. These defenses are typically found in state court opinions or case law (common law) and may also be codified in the state's penal or criminal code. Additionally, Maine may provide pattern jury instructions that include questions to help a jury determine if a defendant's actions are excused by duress or necessity.