Choice of Evils Defenses in Texas: Necessity, Duress, and Public Duty
![handle is hein.journals/ajcl10 and id is 187 raw text is: Choice of Evils Defenses in Texas:
Necessity, Duress, and Public Duty
Erica Luckstead
INTRODUCTION
In some cases in which all of the elements normally constituting
a crime have been shown, punishment is withheld because of pecu-
liar circumstances surrounding the crime. ' Society, through the legal
system, condones and even encourages violation of the letter of the
law in instances in which the actor offers particularly good reasons
for his behavior. These reasons are statutorily recognized defenses
in Texas.2 These 'excuses' or 'justifications' usually mitigate punish-
ment or result in acquittal. In these cases the actor has had to choose
between evils. Herbert L. Packer offers this explanation:
[C]onduct that we choose not to treat as criminal is
'justifiable' if our reason for treating it as noncriminal is
predominantly that it is conduct that we applaud, or at
least do not actively seek to discourage; conduct is 'excusa-
ble' if we deplore it but for some extrinsic reason conclude
that it is not politic to punish it.3
1. Although choice of evils justifications and excuses are sometimes analyzed to negate
an essential element of the crime, this paper will focus on them as defenses, as in Texas law,
with only this brief and simplistic explanation of the other view, still advocated in foreign law
journals.
Some writers view the human response in emergencies, particularly life-threatening ones,
as instinctual, rather than the result of conscious decisions. Because a person acts without
thinking, or without morally evaluating his behavior, he should not be considered to have
acted with a guilty mind, so the essential element mens rea is absent. A very similar argument
is that the defendant who acts instinctually in such a situation has not voluntarily acted. This
theory, called automatism, maintains that there was no actus reus and therefore no crime.
2. Duress is an affirmative defense, TEX. PENAL CODE ANN. § 8.05(a) (Vernon 1974),
and necessity and public duty are justifications, TEX. PENAL CODE ANN. §§ 9.22 and 9.21(a)
(Vernon 1974). Justifications are defenses, TEX. PENAL CODE ANN. § 9.02 (Vernon 1974).
The burden of proof is spelled out for defenses at TEX. PENAL CODE ANN. § 2.03 (Vernon
1974) and for affirmative defenses at TEX. PENAL CODE ANN. § 2.04 (Vernon 1974). The
defendant must raise and offer evidence for a defense or an affirmative defense. The critical
difference is that the charge on a defense is that a reasonable doubt on the issue requires
acquittal, whereas a defendant must prove an affirmative defense by a preponderance of the
evidence.
3. H. PACKER, THE LIMITs OF THE CRIMINAL SANCTION, 113 (1968). (Hereinafter cited
as Packer.)](ViewImageLocal?handle=hein.journals/ajcl10&div=19&collection=&method=preview&ext=.png&size=3)
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Choice of Evils Defenses in Texas: Necessity, Duress, and Public Duty
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