How are affirmative defenses of duress and necessity treated in U.S. law? Duress and Necessity are two common law &quot;affirmative defenses&quot; that can be argued for acquittal of a criminal charge. However I can't find clear law or precedent for either in the United States. Are they viable defenses in practice? Does any jurisprudence provide particular guidelines to their application in criminal law? Is &quot;duress&quot; limited to circumstances of a threat of &quot;imminent harm&quot;? Or are less imminent circumstances of coercion – e.g., extortion, blackmail, or psychological manipulation – viable affirmative defenses under legal doctrine of duress?
Yes, both duress and necessity remain viable defenses. The contours of these defenses will vary from state to state, but many states use the Model Penal Code. MPC § 3.02(1) lays out the necessity defense, which it calls justification: Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear. MPC § 2.09(1) lays out the standard for duress: It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist. So MPC § 2.09 does not explicitly make imminence a requirement for the duress defense, but it adopts an objective standard, which permits the jury to factor in that consideration. A &quot;person of reasonable firmness&quot; would be less able to resist robbing a bank if the threat was to kill their child in 30 seconds than if the threat was to kill their grandmother in 50 years, during which the defendant can call the police to investigate the threat and the odds are good that granny dies anyway. I'd guess most duress cases fall somewhere in the middle, so it becomes a question for the jury whether the threat was serious enough and imminent enough to merit justification.
The clause refers to what might be a lawsuit, which can be adjudicated in appropriate government courts (cf. the choice of law clause), but instead would be submitted to an arbitrator. The contract will spell out the details. An offence is a punishable criminal act, which is outside the scope of civil suits. In US law, the government prosecutes the wrong-doer, not e.g. one of the parties to the contract (if for example the vendor ships an illegal substance to a customer). The same goes for a &quot;breach of law&quot;, depending of course what you mean by breach of law. A breach of contract could not be pursued in court, given a mandatory arbitration clause. The fact that the two parties are in different countries does not nullify a mandatory arbitration clause, at least between the US and the UK.
In the specific example you have given, Florida law could not be applied. A state has jurisdiction over a crime under constitutional due process limits on the scope of a state's criminal jurisdiction if the crime is either committed within the state (regardless of where the harm occurs) or is directed at or impacts the state (the classic example is a gunshot fired from the Ohio side of the state line killing someone located in Indiana, which could be prosecuted in either state, or in both states as it doesn't violate double jeopardy to be prosecuted for the same offense by more than one sovereign). Sometimes these issues are framed not as "jurisdictional" per se, but as "conflict of law" questions limited by the constitution. The proof that a crime was committed in the territory where it is applicable is called proof of locus delecti and depends upon the nature of the crime alleged and the location of the act or acts constituting it. To determine where a crime is committed depends on what acts constitute the crime, something that leaves considerable room for flexible interpretation and a careful reading of the exact wording of the relevant criminal statute. The most important limitation on the territorial jurisdiction of a U.S. state is the Sixth Amendment to the United States Constitution. This applies directly in the case of federal criminal prosecutions in the federal courts, and applies in state courts because it is incorporated to apply in state court cases through the due process clause of the Fourteenth Amendment to the Constitution of the United States under 20th century case law applying the "Selective Incorporation doctrine." The Sixth Amendment mandates that criminal trials be conducted “by an impartial jury of the State and district wherein the crime shall have been committed.” If a suspect is not present in a state to be criminally prosecuted, then the options available to a state are (1) to toll the running of the statute of limitations while the suspect is outside the state to the extent permitted by the relevant state statute and the U.S. Constitution, (2) to bring a civil lawsuit against the suspect instead of a criminal prosecution, or (3) to seek extradition of the suspect, which must be granted under certain circumstances under the United State Constitution and reads as follows in the pertinent part: Article IV, Section 2, Clause 2: A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. (Note that the Sixth Amendment does not apply to civil lawsuits. Civil lawsuit trials can be conducted in a state other than the state where the breach of contract or tort giving rise to the lawsuit took place for jurisdictional purposes and not infrequently is brought in another state, although constitutional choice of law rules limit the circumstances under which a particular state's laws can be applied to a particular set of circumstances in a lawsuit.) The Sixth Amendment, on its face, prohibits Florida from prosecuting a case in the example given in the question involving a crime that was committed solely in Washington State. Of course, the exact definition of the crime might determine where it was committed. In traditional "common law" "blue collar" crimes there is usually no ambiguity over where it is committed except in the most extraordinary circumstances, but in prosecutions of conspiracies and crimes involving economic activity (such as owning or mailing something), the question of where a crime is committed can grow much fuzzier. For example, one could imagine a differently defined crime prohibiting providing funds to finance a purchase of marijuana in excess of 20 grams being committed both in Washington State and Florida at the same time (e.g. perhaps a purchase of marijuana in Washington State was financed by a Florida bank by delivering cash to a courier in Florida who is bound for Washington State knowing that the cash would be used to finance a marijuana purchase). Similar ideas apply in international circumstances where the Sixth Amendment and Extradition Clause do not apply. But, in those cases, the more flexible and less well defined "law of nations" as interpreted by Congress and the U.S. Supreme Court and the President still does impose some territorial boundaries on prosecutions for actions which are not crimes in the country where they are committed under that country's domestic laws. But, those boundaries are not so hard and fast and the idea that a crime is committed in places where it has an impact allow for considerable flexibility in prosecuting crimes committed outside the United States. It has also been well settled since the earliest days of the United States that "The courts of no country execute the penal laws of another." The Antelope, 23 U.S. (10 Wheat.) 66, 123 (U.S. Supreme Court 1825) and that this applies to states applying each other's penal laws as well. So, Florida cannot enforce a violation of the criminal laws of Washington State in its courts either. If you get in a bar fight in Seattle, you can't be prosecute for assault in a court in Orlando, even if both of the parties to the bar fight were Orlando residents and U.S. citizens. Some notable cases resolving the question of whether locus delecti is present in a particular case include the following: In Hyde v. United States, 225 U.S. 347 (1912) although none of the defendants had entered the District of Columbia as part of their conspiracy to defraud the United States, they were convicted because one co-conspirator had committed overt acts in Columbia (225 U.S., at 363). So conspiracy is a continuing offense committed in all the districts where a co-conspirator acts on the agreement. Similarly, In re Palliser, 136 U.S. 257 (1890) the sending of letters from New York to postmasters in Connecticut in an attempt to gain postage on credit, made Connecticut, where the mail he addressed and dispatched was received, an appropriate venue (136 U.S., at 266—268). A typical state statute on the subject from Colorado's Revised Statutes (2016) is as follows: § 18-1-201. State jurisdiction (1) A person is subject to prosecution in this state for an offense which he commits, by his own conduct or that of another for which he is legally accountable, if: (a) The conduct constitutes an offense and is committed either wholly or partly within the state; or (b) The conduct outside the state constitutes an attempt, as defined by this code, to commit an offense within the state; or (c) The conduct outside the state constitutes a conspiracy to commit an offense within the state, and an act in furtherance of the conspiracy occurs in the state; or (d) The conduct within the state constitutes an attempt, solicitation, or conspiracy to commit in another jurisdiction an offense prohibited under the laws of this state and such other jurisdiction. (2) An offense is committed partly within this state if conduct occurs in this state which is an element of an offense or if the result of conduct in this state is such an element. In homicide, the "result" is either the physical contact which causes death or the death itself; and if the body of a criminal homicide victim is found within the state, the death is presumed to have occurred within the state. (3) Whether an offender is in or outside of the state is immaterial to the commission of an offense based on an omission to perform a duty imposed by the law of this state. Case law under this statute sometimes describes the issue presented under this statute a question of "sovereign jurisdiction." See, e.g., People v. Cullen, 695 P.2d 750 (Colo. App. 1984).
In the third of your sources (Harassment act, section 5), near the end, it says: If the defendant breaches an order under section 5 or 5A of the PHA 1997 without reasonable excuse, she/he will be guilty of a criminal offence (section 5(5) PHA 1997). The penalty that may be imposed upon breach of the new section 5A restraining order is identical to that which can be imposed under section 5. (Emphasis added) In Item 2 of the first source (darlingtons.com) it says: If a person disobeys the terms of an Order of Court which carries a penal notice, he will have breached the Injunction. As to whether such a breach constitutes contempt, will be considered on a case-by case approach according to the particular facts of the given case. The seriousness of the breach, and the question as to whether such action undermined or ‘laughed in the face of the Court Order’ so as to be contemptuous, will be determined by the Court. In item three of this same source it says: If the Court considers that the breach was intended to impede or prejudice the administration of justice, the Court has power to commit a person to prison, and/or impose a fine. In short it appears that the court is expected to use judgement on a case-by-case basis. Violation of a restraining order because the person subject to the order had to provide emergency medical or fire or rescue services, or otherwise provide needed assistance in an emergency, with no improper motive, would, I should think, not lead to any penalty for contempt. US practice also expects a court to exercise judgement when sentencing for contempt.
California law has a general defense of necessity. It appears that it's not in statute, but rather comes from common law. It's described in what appears to be the official jury instructions at CALCRIM 3403. The defendant is not guilty of (insert crime[s]) if (he/she) acted because of legal necessity. In order to establish this defense, the defendant must prove that: (He/She) acted in an emergency to prevent a signiﬁcant bodily harm or evil to (himself/herself/ [or] someone else); (He/She) had no adequate legal alternative; The defendant’s acts did not create a greater danger than the one avoided; When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil; A reasonable person would also have believed that the act was necessary under the circumstances; AND The defendant did not substantially contribute to the emergency. The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the six listed items is true. It seems like all six requirements would apply in your hypothetical case, so if you could prove them, you'd be off the hook for a violation of Cal. Penal 148(a)(1) as cited by user6726.
How would this scenario play out in the legal system? Prosecutor brings charges against EQM or tries to use that conviction to enhance a subsequent conviction. Defendant EQM raises the pardon as a defense. Prosecutor responds that the pardon was intended to cover EQM Prime, not EQM. The Court holds an evidentiary hearing to determine whether the President intended to pardon EQM Prime or EQM. The Court decides who the President intended to pardon based upon the evidence presented at the hearing, and rules accordingly. The burdens of proof are tricky. Usually affirmative defenses have a preponderance of the evidence burden on the proponent of the defense, but sometimes the defense must be disproved beyond a reasonable doubt. I don't know that part of the law well enough to know without lots of research and the outcome might not be uniform across the U.S. To my knowledge, there has never been a case that got this far in which the true identity of the beneficiary of the pardon was ambiguous. It is possible, but a vanishingly rare possibility. Almost always, someone gets a pardon by asking for it and determining whether EQM or EQM Prime asked resolves it, or a reference to the crime resolves it. If the Court concludes that both asked the same President to be pardoned for the same crime (e.g. if the same crime was committed jointly by father and by son who is named after father and doesn't use Jr. day to day) and the Court concludes that the President was probably confused and didn't realize that there were two requests from different people and not one, the judge would probably give them the benefit of the doubt and treat both as pardoned as that would still reflect the President's intent.
A couple of SCOTUS decisions bearing on this are Texas v. Brown, 460 U.S. 730 and Illinois v. Gates, 462 U.S. 213, where the courts took pains to deny that &quot;probable cause&quot; is related to a number. From Texas v. Brown, the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely required that the facts available to the officer would &quot;warrant a man of reasonable caution in the belief,&quot; Carroll v. United States, 267 U. S. 132, 267 U. S. 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct, or more likely true than false. A &quot;practical, nontechnical&quot; probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U. S. 160 From Illinois v. Gates, The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. The question is framed in terms of probability that a certain individual is guilty, but that is not the basis for issuing a search warrant. Rather, a warrant may be issued if there is a fair probability that evidence bearing on a crime will be found. That would include evidence that exonerates a person (the system is not set up to only favor convictions). It would be highly impractical to assign a numeric value to probability of finding evidence, since there is more to the matter than just declaring &quot;It must have been one of these three people&quot;.
A threat is not a threat if its lawful Let's look at a particular statute s249K of the Crimes Act 1900 [NSW]: (1) A person who makes any unwarranted demand with menaces: (a) with the intention of obtaining a gain or of causing a loss, or (b) with the intention of influencing the exercise of a public duty, is guilty of an offence. s249I defines &quot;unwarranted&quot;: (1) For the purposes of this Part, a demand with menaces is &quot;unwarranted&quot; unless the person believes that he or she has reasonable grounds for making the demand and reasonably believes that the use of the menaces is a proper means of reinforcing the demand. If you genuinely believe that you have reasonable grounds for your demand and that a lawsuit is a proper means of enforcing that demand, then threatening to initiate one is not blackmail.