United States v. Washington, 57 MJ 394 (necessity was traditionally seen as a choice of evils defense in which the pressure of circumstances was not brought by human agency, but by the situation itself; and the defendant’s belief that his actions were necessary must have been reasonable, and there must have been no alternative that would have caused lesser harm).

(if the defense of necessity applies in the military justice system -- a question which the Court of Appeals for the Armed Forces did not resolve at this time – it must be interpreted in conjunction with the guidance on disobedience of lawful orders and the essential purposes of military law and would call for an application of the prevailing civilian doctrine regarding the requirement for the necessity to arise from a natural force, as opposed to a human action).

(there may indeed be unusual situations in which an assigned military duty is so mundane, and the threat of death or grievous bodily harm so clearly defined and immediate, that consideration might be given to a duress or necessity defense; that is not the case where the anthrax vaccination program was designed and implemented as a defensive measure in the face of a significant military threat).


United States v. Olinger, 50 MJ 365 (where appellant’s guilty plea was otherwise provident, Court declined to determine whether common-law defense of necessity should be applicable to courts-martial).

United States v. Rockwood, 52 MJ 98 (necessity is a “choice of evils” defense, brought about by the situation itself, where the belief that the action was necessary is reasonable, and there must have been no alternative that would have caused lesser harm).

(the Manual has no provision specifically establishing “necessity” as a defense, nor is there a standard instruction denominated “necessity”).

(military judge’s instruction, which blended elements of duress to the circumstances of appellant’s conduct and included elements of necessity, comported well with general civilian criminal law, and expressed an objective standard common to both duress and necessity). 

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