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91.4 Escape: Necessity/Choice Of Evils, Duress/Coercion/Compulsion As Defense Theory

    91.4.1 Duress/Necessity As Justification For Escape
    91.4.2 Duress/Necessity As Justification For Escape: Whether Immediate Surrender Is Required
    91.4.3 Necessity Or Duress As Defense To Escape: Seeking Help From Prison Authorities May Not Be Reasonable Legal Alternative
    91.4.4 Escape From Prison -- Short Remaining Term As Evidence Of Immediate Danger
    91.4.5 Duress/Necessity/Coercion: Escape From Prison – Applicability To Aider And Abettor
    91.4.6 Duress/Necessity/Coercion As Defense To Escape: Factors To Consider

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RATIONALE: If the defendant has no reasonable alternative other than escape to avoid a threat of imminent death or great bodily injury he or she should not be criminally liable for escape.

POINTS AND AUTHORITIES: "...[A]n escape from prison may be justifiable if the prisoner is acting under a threat of imminent death or serious bodily injury...." (Wharton’s Criminal Law (West, 15th Ed. 1996) § 642, pp. 458-62; see also People v. Lovercamp (CA 1974) 43 CA3d 823, 831-32 [118 CR 110]; State v. Jacobs (LA 1979) 371 So2d 801, 802; State v. Boleyn (LA 1976) 328 So2d 95, 97; State v. Ottwell (MT 1989) 784 P2d 402, 404; Esquibel v. State (NM 1978) 576 P2d 1129, 1131-32; State v. Culp (TN 1994) 900 SW2d 707, 710 [defenses of necessity and duress are available as defenses to escape]; State v. Tuttle (UT 1986) 730 P2d 630, 632-34.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

Annotation, Duress, Necessity, Or Conditions Of Confinement As Justification For Escape From Prison, 54 ALR5th 141.

See also generally, FORECITE National™ 305.5.7 [Escape].

See 1st Circuit Pattern Jury Instructions - Criminal 4.04.

See also 1st Circuit Pattern Jury Instructions - Criminal 4.05.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.38.

    It is a defense to the crime of escape that the defendant, at the time of the escape, had a reasonable fear of death or imminent danger of bodily harm if the defendant remained in custody.

[See generally State v. Miller (SD 1981) 313 NW2d 460; State v. Baker (SD 1980) 598 SW2d 540, 546 [defense of necessity properly raised when jury could find escape was justified by reasonable fear of death or bodily harm so imminent that desirability of avoiding the injury outweighs the public injury from escape]; cf. SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-5-3 [Escape-Defenses-Justification] (State Bar of South Dakota, 1996).]

    The prosecution must prove beyond a reasonable doubt that the defendant did not act under [duress] [coercion] [necessity] when [he] [she] escaped from custody. If you have a reasonable doubt whether the prosecution has met this burden you must not convict the defendant of escape.

[Source: FORECITE National™.]

    The defendant has the burden of proving by a preponderance of the evidence all of the following elements to establish a necessity defense to the crime of escape:

    1.     The defendant was faced with a specific threat of death, forcible sexual attack, or substantial bodily injury in the immediate future.

    2.     The defendant did not have time for a complaint to the authorities or the defendant had made complaints before but did not receive adequate protection from the prison authorities.

    3.     There was no time or opportunity for the defendant to obtain relief from the courts.

    4.     Force or violence was not used against prison personnel or other innocent persons in the escape.

    5.     The defendant immediately reported to the authorities after attaining a position of safety [or, if apprehended before the opportunity arose, the defendant  intended to report immediately to the proper authorities after attaining a position of safety].*

* But see FORECITE National™ 91.4.2 [Duress/Necessity As Justification For Escape: Whether Immediate Surrender Is Required].

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PRACTICE NOTE: See State v. Baker (MO 1980) 598 SW2d 540 [voluntary return not a required element, but the immediacy of the surrender will bear on issues of credibility]; but see U.S. v. Bailey (1980) 444 US 394, 415 [100 SCt 624; 62 LEd2d 575] [escapee must offer evidence justifying his continued absence from custody as well as his initial departure including a bonafide effort to surrender or return to custody as soon as the claim duress or necessity had lost its coercive force]; U.S. v. Sarno (4th Cir. 1994) 24 F3d 618, 620 [same].

See generally, FORECITE National™ 305.5.7 [Escape].

See 1st Circuit Pattern Jury Instructions - Criminal 4.04.

See also 1st Circuit Pattern Jury Instructions - Criminal 4.05.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.38.

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PRACTICE NOTE: "[W]hile the typical case will require a prisoner to attempt to seek help from prison authorities as an alternative to committing the crime, there may be cases in which the prisoner will be able to offer evidence justifying his decision not to go to prison authorities: that seeking help from prison authorities would not have been a reasonable legal alternative but instead would have subjected him to continued or additional physical harm. [Defendant] presented evidence of threats of immediate harm in this case, and the district court acknowledged that [defendant] had a well-founded fear that going to prison officials might have placed him in more danger. In other words, seeking help might not have been a reasonable legal alternative to avoiding immediate physical harm." (U.S. v. Riffe (6th Cir. 1994) 28 F3d 565, 570; see also FORECITE National™ 254.1.1.3 [Duress/Coercion By Gangs: Exception To Requirement That Police Be Notified].)

See generally, FORECITE National™ 305.5.7 [Escape].

See 1st Circuit Pattern Jury Instructions - Criminal 4.04.

See also 1st Circuit Pattern Jury Instructions - Criminal 4.05.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.38.

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PRACTICE NOTE: Logically, the fact that the defendant escaped with only one month remaining on a five-year term suggests that the defendant acted under duress. (See e.g., Pittman v. Commonwealth (KY 1974) 512 SW2d 488, 490 [evidence of immediate danger of personal harm and that escape occurred with only one month remaining on five-year sentence].)

See generally, FORECITE National™ 305.5.7 [Escape].

See 1st Circuit Pattern Jury Instructions - Criminal 4.04.

See also 1st Circuit Pattern Jury Instructions - Criminal 4.05.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.38.

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PRACTICE NOTE: One who aids and abets another to escape from prison or jail, may rely on the principal defendant’s necessity/coercion/duress defense. (See U.S. v. Lopez (9th Cir. 1989) 885 F2d 1428, 1434-36.) However, in instructing the jury as to the applicability of this defense to the aider and abettor, it is erroneous to make the defense unavailable to the aider and abettor solely on the basis of the principal’s failure to make a bona fide effort to surrender. (Ibid.)

See generally, FORECITE National™ 305.5.7 [Escape].

See 1st Circuit Pattern Jury Instructions - Criminal 4.04.

See also 1st Circuit Pattern Jury Instructions - Criminal 4.05.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.38.

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RATIONALE: To promote a reliable jury determination it may be appropriate to instruct the jury on the relevant factors to consider in deciding whether a prison escape was justified.

POINTS AND AUTHORITIES: See generally; FORECITE National™ 91.4.1 [Duress/Necessity As Justification For Escape]; see also People v. Lovercamp (CA 1974) 43 CA3d 823, 831-32 [118 CR 110].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

See generally, FORECITE National™ 305.5.7 [Escape].

See 1st Circuit Pattern Jury Instructions - Criminal 4.04.

See also 1st Circuit Pattern Jury Instructions - Criminal 4.05.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.38.