Study guide
12.5 Duress & Necessity
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1 Introduction & FYLSE Examination Guide
1.1 FYLSE Exam Structure, Passing Standard & Administration 1.2 Study Method, Pacing & MBE-Style Technique
2 Contracts: Mutual Assent, Capacity & Contract Formation
2.1 The Offer & Objective Theory of Assent 2.2 Termination & Irrevocability of Offers 2.3 Acceptance & the Mailbox Rule 2.4 Mirror Image Rule & UCC 2-207 Battle of the Forms 2.5 Mistake in Contract Formation 2.6 Fraud, Duress, Undue Influence & Illegality 2.7 Capacity to Contract
3 Contracts: Consideration, Estoppel & Implied Obligations
3.1 Consideration & the Bargained-For Exchange 3.2 Past & Moral Consideration, Pre-Existing Duty & Modification 3.3 Promissory Estoppel & Detrimental Reliance 3.4 Implied-in-Fact Contracts & Quasi-Contract 3.5 Implied Covenant of Good Faith, Fair Dealing & Indefinite Terms
4 Contracts: Third-Party Beneficiaries, Assignment & Delegation
4.1 Third-Party Beneficiary Contracts 4.2 Assignment of Rights 4.3 Delegation of Duties
5 Contracts: Statute of Frauds, Parol Evidence & Interpretation
5.1 Statute of Frauds: Contracts Within the Statute 5.2 Satisfying the Statute: Writing, Signature & Exceptions 5.3 The Parol Evidence Rule 5.4 Contract Interpretation & Canons of Construction
6 Contracts: Performance, Conditions, UCC Warranties & Breach
6.1 Conditions: Express, Constructive & Excuse 6.2 Substantial Performance vs. Perfect Tender 6.3 Cure, Rejection, Revocation & Installment Contracts 6.4 UCC Article 2 Warranties & Risk of Loss 6.5 Anticipatory Repudiation & Insecurity
7 Contracts: Remedies, Discharge & Changed Circumstances
7.1 Expectation Damages & Their Limitations 7.2 Reliance, Restitution & Liquidated Damages 7.3 Specific Performance & Injunctive Relief 7.4 UCC Article 2 Buyer's and Seller's Remedies 7.5 Impossibility, Impracticability & Frustration of Purpose 7.6 Discharge by Agreement: Rescission, Novation & Accord and Satisfaction
8 Criminal Law: Principles of Criminal Liability & Mens Rea
8.1 Actus Reus, Voluntary Acts & Omissions 8.2 Criminal Causation & Intervening Causes 8.3 Common Law & Model Penal Code Mens Rea 8.4 Mistake of Fact, Mistake of Law & Concurrence
9 Criminal Law: Inchoate Offenses & Accomplice Liability
9.1 Criminal Attempt & Impossibility 9.2 Solicitation & the Merger Doctrine 9.3 Conspiracy & Merger Doctrine 9.4 Accomplice Liability: Actus Reus & Mens Rea 9.5 Scope of Accomplice Liability, Withdrawal & Parties to Crime
10 Criminal Law: Homicide & Crimes Against the Person
10.1 Common Law Murder & Malice Aforethought 10.2 Degrees of Murder, Premeditation & Deliberation 10.3 The Felony Murder Rule & Its Limitations 10.4 Voluntary & Involuntary Manslaughter 10.5 Non-Homicide Crimes Against the Person
11 Criminal Law: Property Crimes, Theft & Habitation
11.1 Common Law Larceny 11.2 Embezzlement & False Pretenses 11.3 Robbery & Extortion 11.4 Receiving Stolen Property 11.5 Burglary 11.6 Arson
12 Criminal Law: Defenses: Capacity, Justification & Excuse
12.1 Insanity: The Four Legal Tests 12.2 Intoxication, Diminished Capacity & Infancy 12.3 Self-Defense & Defense of Others 12.4 Defense of Property, Habitation & Law Enforcement Privileges 12.5 Duress & Necessity 12.6 Entrapment & Mistake as an Excuse
13 Torts: Intentional Torts to Persons & Property
13.1 Intent, Motive & Incapacity in Intentional Torts 13.2 Transferred Intent 13.3 Battery & Assault 13.4 False Imprisonment 13.5 Trespass to Land 13.6 Trespass to Chattels & Conversion
14 Torts: Privileges & Defenses to Intentional Torts
14.1 Consent: Express, Implied & Capacity 14.2 Exceeding & Vitiating Consent 14.3 Self-Defense & Defense of Others (Tort) 14.4 Defense of Property & Recapture of Chattels 14.5 Public & Private Necessity 14.6 The Shopkeeper's Privilege
15 Torts: Negligence — Duty of Care & Breach
15.1 Duty of Care & the Foreseeable Plaintiff 15.2 Affirmative Duties to Act & Special Relationships 15.3 Standard of Care: The Reasonable Person & Children 15.4 Professional Negligence, Informed Consent & Negligence Per Se 15.5 Land Possessor Liability & Premises Duties 15.6 Breach of Duty & Res Ipsa Loquitur
16 Torts: Causation, Defenses, Multiple Tortfeasors, Wrongful Death & Damages
16.1 Cause in Fact & Multiple Actors 16.2 Proximate Cause & Intervening Forces 16.3 Contributory, Comparative Negligence & Assumption of Risk 16.4 Joint and Several Liability, Contribution & Indemnity 16.5 Vicarious Liability & Non-Delegable Duties 16.6 Wrongful Death & Survival Actions 16.7 Statute of Limitations & Claim Accrual 16.8 Tort Damages: Compensatory, Nominal, Punitive & Mitigation
17 Torts: Strict Liability & Products Liability
17.1 Strict Liability for Animals 17.2 Abnormally Dangerous Activities & Scope of Risk 17.3 Strict Products Liability & Defect Categories 17.4 Products Liability Under Negligence, Warranty & Misrepresentation 17.5 Defenses to Products Liability
18 Torts: Emotional Distress, Defamation, Privacy & Economic Torts
18.1 Intentional Infliction of Emotional Distress 18.2 Negligent Infliction of Emotional Distress 18.3 Common Law Defamation: Elements, Libel & Slander 18.4 Constitutional Limits, Privileges & Defenses to Defamation 18.5 Invasion of Privacy 18.6 Nuisance & Economic Torts
12.5 Duress & Necessity
Key Takeaways Explain This Topic AI
Duress excuses a crime committed under an imminent threat of death or serious bodily harm to the defendant or another, where the defendant reasonably believed the threat would be carried out.
Duress is never a defense to intentional homicide, though it may reduce liability or apply to the underlying felony in a felony murder prosecution.
A defendant who recklessly placed himself in a position where coercion was probable cannot claim duress.
Necessity is a justification arising from natural forces rather than human threats, requiring that the harm avoided outweigh the harm caused.
Necessity is unavailable where the defendant created the emergency, and the traditional rule bars it as a defense to homicide.
Last updated: September 2026
Duress & Necessity
Doctrinal Foundation: When an individual engages in conduct meeting the statutory elements of a crime due to overwhelming external pressures or governmental overreach, the criminal law evaluates whether punishment is morally warranted or legally excused. On the California First-Year Law Students' Examination (FYLSE), candidates must master the boundary separating duress (an excuse compelled by human coercion) from necessity (a justification compelled by natural physical pressures), navigate the non-negotiable rule that duress is never a defense to murder, apply the competing subjective and objective tests for entrapment , and classify mistake of fact across specific, general, and strict liability offenses.
I. Duress: Coercion by Human Agency
Duress is an affirmative defense of excuse . It recognizes that when an individual is subjected to an unlawful, overwhelming human threat of immediate death or severe bodily harm, their volition is constrained such that criminal punishment would be unjust and ineffective as a deterrent. ┌──────────────────────────────────────┐
- │ Four Elements of Common Law │
- │ DURESS │
- └──────────────────┬───────────────────┘
- │
- ┌──────────────────┬────────────────┴──────────────────┬──────────────────┐
- ▼ ▼ ▼ ▼
- [Human Threat] [Imminent Peril] [No Safe Escape] [EXCLUSION]
- Unlawful threat - Immediate death - No opportunity to - NEVER A DEFENSE
- by another person or serious bodily harm retreat, call police TO INTENTIONAL
- Directed at actor - Threat must be present or avoid crime HOMICIDE (MURDER)
- or family member and operating right now without death - Complete Bar
- 1. Elements of Duress
To establish the defense of duress at common law, the defendant must prove four distinct requirements:
Human Threat of Death or Grievous Bodily Harm: The coercion must originate from another human being threatening death or serious bodily injury. Threats directed toward property, financial well-being, or reputation (e.g., blackmail) never establish duress.
Target of the Threat: The threat must be directed against the defendant, an immediate family member, or (under modern statutes and Model Penal Code § 2.09) any third person.
Imminence and Reasonableness: The defendant must harbor a well-grounded, objectively reasonable belief that the threat of death or serious injury is immediate, real, and impending. A threat of future harm ("Commit this burglary or I will shoot you next week") fails the imminence requirement.
No Reasonable Opportunity to Escape: The defendant must have had no safe, realistic avenue of escape, and no opportunity to alert law enforcement or avoid committing the crime without suffering immediate death or grievous harm.
2. The Universal Limitation: Duress NEVER Defends Intentional Murder
The single most critical rule tested on the FYLSE regarding duress is absolute and unforgiving: DURESS IS NEVER A DEFENSE TO INTENTIONAL HOMICIDE.
The Blackstone Principle: As Sir William Blackstone famously observed, a person confronted with the choice of dying or killing an innocent person "ought rather to die himself, than escape by the murder of an innocent."
Application to Degrees of Murder: Duress will not acquit an actor of first-degree premeditated murder or second-degree common law murder. An individual cannot lawfully choose to sacrifice an innocent life to preserve their own.
Application to Felony Murder (The Substantive Felony Exception): A vital exam distinction exists regarding felony murder:
If an actor is coerced under duress to participate as a getaway driver or look-out in an armed robbery, duress is a valid defense to the underlying felony (robbery).
If the duress defense successfully negates the underlying felony, the actor cannot be convicted of felony murder , because the predicate felony has been legally excused.
However, if the coerced actor personally executes a victim, duress is unavailable for the homicide.
Warning
The Gang Affiliation / Prior Fault Exception: Duress is completely forfeited if the defendant voluntarily placed themselves into a situation where it was foreseeable that they would be subjected to criminal coercion (e.g., voluntarily joining an armed street gang, drug syndicate, or organized crime syndicate). A gang member ordered to execute a robbery under threat of death cannot raise duress.
II. Necessity: The "Choice of Evils" Justification
While duress involves an excuse compelled by unlawful human coercion, necessity is a justification compelled by physical or natural forces . ┌──────────────────────────────────────┐
- │ Duress vs. Necessity Comparison │
- └──────────────────┬───────────────────┘
- │
- ┌──────────────────────────────────┴──────────────────────────────────┐
- ▼ ▼
- [DURESS: Excuse] [NECESSITY: Justification]
- Source: Human coercion and threats - Source: Non-human natural physical forces
- ("Steal that car or I shoot you") (Wildfires, storms, starvation, floods)
- Conduct is WRONGFUL, but actor excused - Conduct is RIGHTFUL (Lesser of two evils)
- NEVER a defense to murder - Objective balance: Harm avoided > Harm caused
- Complete bar if voluntary gang membership - Inapplicable if actor created the emergency
- 1. Elements of Common Law Necessity
Under traditional common law and modern choice-of-evils jurisprudence (Model Penal Code § 3.02), necessity requires:
Natural Physical Pressure: The emergency must be caused by non-human physical forces of nature (e.g., storms, blizzards, wildfires, shipwrecks, disease, sudden medical emergencies, starvation).
Prevention of Greater Harm: The harm the defendant seeks to avoid must be objectively greater than the harm caused by the criminal conduct (e.g., burning a controlled backfire across a neighbor's private property to save a town from a wildfire, or breaking into a mountain cabin to survive a blizzard).
Imminence and Lack of Lawful Alternative: The danger must be imminent, and no lawful alternative existed to avert the catastrophe.
Defendant Free from Fault: The defendant must not have been negligent or reckless in creating or bringing about the emergency situation.
2. The Starvation and Homicide Limitation ( Regina v. Dudley and Stephens )
Can necessity justify killing an innocent human being to preserve the lives of others? In the legendary case Regina v. Dudley and Stephens (14 Q.B.D. 273 (1884)), four shipwrecked sailors were stranded in an open lifeboat 1,000 miles from land without food or water. After eighteen days of starvation, two sailors killed and consumed the unoffending cabin boy. The court held:
Necessity is NEVER a defense to intentional homicide.
The objective balance of harms cannot weigh the value of one innocent human life against another.
3. Legislative Preclusion
Necessity is unavailable if the governing legislature has already addressed the competing values and resolved the conflict through statutory enactments. In United States v. Oakland Cannabis Buyers' Cooperative (532 U.S. 483 (2001)), the U.S. Supreme Court held that the federal Controlled Substances Act precluded the defense of medical necessity for distributing marijuana, because Congress had already classified cannabis as having no accepted medical use.
Comparison Table: Duress vs. Necessity
Dimension Duress Necessity (Choice of Evils)
Legal Classification Excuse (actor's will was overcome). Justification (lesser of two evils was proper).
Origin of Pressure Unlawful threats from human actors . Non-human natural physical forces or crisis.
Defense to Murder? NO (categorically excluded). NO ( Regina v. Dudley and Stephens ).
Economic Threats Ineffective (threat must be life/bodily harm). Economic harm can be weighed in lesser evils.
Prior Fault Barred if actor placed self in jeopardy. Barred if actor created the emergency.