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 Ohio, the defenses of duress and necessity are recognized as potential affirmative defenses to criminal charges under certain circumstances. Ohio law differentiates between the two. Duress occurs when a person commits a crime because they were coerced by the threat of imminent harm to themselves or others. Necessity, on the other hand, applies when a person is faced with a choice of evils and must violate the law to prevent a greater harm. The elements required for these defenses typically include an immediate threat of death or serious bodily injury, no contribution to the situation by the defendant, no viable legal alternative, and a reasonable belief that the criminal act would prevent the harm. These defenses are not absolute and are subject to strict scrutiny by the courts. Ohio may have specific statutes and case law that further define and regulate the application of duress and necessity defenses, and these defenses can be presented to a jury with appropriate instructions. It is important for an attorney to evaluate the specific facts of a case against the legal standards in Ohio to determine the viability of these defenses.
