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Acts in Emergency: Justification vs. Excuse


Acts in Emergency: Justification vs. Excuse


Donald, charged by a raging bull, hits it with Victoria’s Ming vase, destroying the vase but diverting the bull. Is Donald guilty of intentional damage to Victoria’s property? Martina tells Ken that unless Ken steals Joan’s lawn mower, Martina will kill him. If Ken does so, is he guilty of larceny? Suppose the threat is not to kill Ken but to destroy his Mercedes. What then? Finally, Ebenezer sees Marley coming at him with what appears to Ebenezer to be a machine gun. May Ebenezer pull out a pistol and shoot Marley, or must he wait until Marley himself actually shoots?

In each of these situations, the defendant is faced with a situation in which a decision must be made instantly. Rather than labeling all three such acts as “emergency decisions” and treating them similarly, the common law created separate doctrines that, while similar, have been treated differently with somewhat different rules. Thus, Donald would have to argue that he acted in “necessity” (choosing the lesser of two evils). Ken, in either of the examples, would have to argue “duress.” Finally, Ebenezer would claim neither of these defenses but “self-defense.” In assessing these doctrines do not lose sight that each of them involves action taken in dire, emergency conditions.[1]


The essence of these three claims is that the defendant

a. is acting under extraordinary pressure,

b. from which there is (or appears to him to be) no reasonable escape,

c. to do something that involves injury to his or another’s person or property, and that, in the absence of the emergency, would clearly be criminal (although the defendant may not recognize or know that).

Actus Reus, Mens Rea, or Both? Or Neither?

Actus Reus

Some theorists argue that the defendant who acts under such pressure does not meet even the primary requirement for criminal responsibility—a voluntary act (see Chapter 3). One who kills another while a gun is aimed at his own head is not “really” acting voluntarily, the argument goes. As is often said, the defendant may be faced with a hard choice, but it is a choice nonetheless. The contention considered in the last chapter, that a defendant in an emergency has no “fair” choice, while more appealing, does not deny the choice—merely the inculpatory nature of the choice. The law has rejected this nonvoluntary act argument.

[1] Elliott, Necessity, Duress and Self-Defense, [1989] Crim. L. Rev. 611; Colvin, Exculpatory Defenses in Criminal Law, 10 Ox. J. Legal Stud. 381 (1990). Arguing strongly that it is the “crisis” aspect of these defenses that distinguishes them from other claims, see William Wilson, The Filtering Role of Crisis in the Constitution of Criminal Excuses, 17 Can. J. L. & Juris. 387 (2004). Consider, also, the analog to provocation, discussed in Chapter 8.

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