2002
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).
1999
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).