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Duress or Necessity

While seldom used, the Florida statutes provide for the defenses of duress or necessity. More common place in probation and community control violations, the defenses still exist for substantive cases that are open and set for trial. A lawful defense exists if a defendant commits a crime acting out of duress or necessity.

The defense of duress refers to a scenario where a person is alleged to have committed a crime, but the criminal act was performed as the result of violence, threat of violence or some other pressure. Any form of duress exerted, that causes a person to act or not to act outside the law, can be used to establish a viable defense. The most important aspect of duress is that if proven, can negate the intent required to prove a case beyond a reasonable doubt. One of the pitfalls of the duress defense is that a person charged with a crime will most likely have to admit to the commission of a criminal offense to exert the defense of duress.

For a viable duress defense to exist the defense must prove the following six elements. The defendant must prove that he or she reasonably believe that a danger or emergency existed which was not intentionally caused by the defendant. The danger or emergency threatened significant harm to the defendant or a third party. The danger or the emergency threatened death or serious bodily injury. The threat must have been real, imminent, and impeding. The defendant had no reasonable means to avoid the danger or emergency except by committing the charged offense.

Imminent and impending means the danger or emergency is about to occur and cannot be avoided by any other means. A future threat of death or harm will not suffice to prove the defense of duress or necessity. A defendant cannot claim the defense if the crime was committed after the threat of harm or death had already passed. The danger or emergency that faced the defendant need not be real, however, the appearance of the danger of emergency must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that only way to avoid the perceived danger was to commit the offense.

The necessity defense has also been made part of Florida's statutory law. The rationale behind the necessity defense is that on occasion a technical violation of the law under exceptional situations is more advantageous than the strict adherence to the law. To prove the defense of necessity, the following elements must be proven: the defendant committed the act to avoid a significant risk of harm, no other means could have been used to escape the harm and the harm avoided was greater than the harm caused by violating the law.

While the above-mentioned defenses are uncommon, if you have any questions regarding duress or necessity, call DMT seven days a week, 24 hours a day at (305) 340-2197, or contact us online.