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 West Virginia, 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 to have committed an offense 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 defendant's lack of contribution to the situation through reckless or negligent behavior, no reasonable legal alternative to the act, and a belief that the criminal act was necessary to prevent the harm. West Virginia's approach to these defenses is derived from both statutory law and common law (court opinions or cases). The state's penal code may provide the legal framework for these defenses, while case law offers further interpretation and application. Additionally, pattern or form jury instructions may be available to guide juries in determining whether a defendant's conduct can be excused based on duress or necessity. It is important to note that the application of these defenses is fact-specific and must meet the legal criteria established by West Virginia law and precedent.