Don’t you know there are certain types of people who commit crimes more often than other people?  Legislatures and courts employ this logic when seeking to admit propensity evidence.  Isn’t society better off, they argue, convicting a few innocent defendants so that society is more secure from those bad people who need to be in prison?  Supporters of admitting propensity evidence have argued that their cases are often difficult to prove because of the unique circumstances of certain cases, i.e., they typically involve swearing matches between the victims and defendants.  Thus, propensity evidence allows the defendant’s other acts to bolster the instant victim’s credibility and lessen the chance of an acquittal.  Supporters of propensity evidence believe this encourages victims to proceed with charges against the defendant.  This is a song frequently sung by sexual assault prosecutors and domestic violence prosecutors.  But see, Kenneth J. Melilli, The Character Evidence Rule Revisited, 4 BYU L. REV. 1547, 1587 (1998) (“[T]he claim that sex offenses are singularly difficult to prove is unsubstantiated. Many other crimes (such as homicides, burglaries of unoccupied premises, thefts of unguarded property and so called victimless crimes) do not offer the government even the testimony of the victim, and sex offense prosecutions are frequently aided by medical and scientific evidence.”)
 Factually, the problem with these arguments is that past behavior is actually a poor basis for predicting future behavior.  Miguel A. Méndez & Edward J. Imwinkelried, People v. Ewoldt: The California Supreme Court’s About-Face on the Plan Theory for Admitting Evidence of an Accused’s Uncharged Misconduct, 28 LOY. L.A. L. REV. 473, 496 (1995); David P. Bryden & Roger C. Park, “Other Crimes” Evidence in Sex Offense Cases, 78 MINN. L. REV. 529, 561-62 (1994).  Propensity evidence proponents point to the the trait theory which was championed by Gordon Allport. Leonard, The Use of Character to Prove Conduct: Rationality and Catharsis in the Law of Evidence, 58 U. COLO. L. REV. 1, 26 (1986-87). That theory viewed a person's general character as a reliable predictor of conduct across widely differing situations.                                  However, in the 1960's Walter Mischel introduced the competing theory of specificity or situationism.  Id. at 27.  Mischel attacked the trait theory by pointing to studies showing a lack of cross-situational consistency.  Those studies demonstrated that "moral conduct in one situation is not highly correlated with moral conduct in another." Campbell v. Greer, 831 F.2d 700, 707 (7th Cir. 1987) (citing Burton, Generality of Honesty Reconsidered, 70 PSYCHOLOGY REV. 481 (1963))  In light of the available studies, we can have little confidence in the construct of character as a predictor of conduct. 22 C. WRIGHT & K. GRAHAM, §5239 Although some psychologists still subscribe to a modified version of the trait theory, Crump, How Should We Treat Character Evidence Offered to Prove Conduct?, 58 U. COLO. L. REV. 279, 283 (1987).
 The problem with such arguments legally is that they deny due process of law.  The proscription against admitting propensity evidence is directed against the idea that when it is shown that a person committed a crime on a former occasion there arises an inference that he has a disposition to commit crime and therefore committed the crime with which he is now charged. Huddleston v. United States, 485 U.S. 681, 685 (1988) (commenting that propensity evidence may carry risk of unfair prejudice to defendant); Spencer v. Texas, 385 U.S. 554, 570 (1967) (Warren, C.J., dissenting) (noting that use of prior convictions evidence to show action in conformity "needlessly prejudices" accused); Boyd v. United States, 142 U.S. 450, 458 (1892) (discussing prejudice accruing to defendant when court admits propensity evidence); United States v. Hines, 955 F.2d 1449, 1454 (11th Cir. 1992) (commenting that character evidence has strong potential for unfair prejudice); United States v. Peden, 961 F.2d 517, 520 (5th Cir.) (asserting that propensity evidence is likely to prejudice jury and blind it to real issue of whether accused is guilty of crime charged), cert. denied, 506 U.S. 945 (1992); People v. Zackowitz, 172 N.E. 466, 467 (N.Y. 1930) (Cardozo, C.J.) (noting that propensity evidence carries appeal to prejudice and passion); Rex v. Smith, 11 Crim. App. 229, 237 (Crim. App. 1915) (explaining why propensity evidence is inadmissible); Regina v. Oddy, 169 Eng. Rep. 499, 502 (Cr. Cas. Res. 1851) (Lord Campbell, C.J.) (rejecting propensity evidence because it prejudiced accused as "bad man"). 
 Almost since Wisconsin became a state, Wisconsin courts have held that evidence of uncharged misconduct evidence is inadmissible to establish the defendant’s general character, disposition, or criminal propensity.  Fossdahl v. State, 89 Wis. 482, 485 (1895); Boldt v. State, 72 Wis. 7, 15-16 (1888).  This rejection of other act evidence in Wisconsin continues today.  There is no presumption that other acts evidence is admissible.  The presumption under Rule 404(b) is against admissibility. State v. Scheidell, 227 Wis.2d 285, 294, 595 N.W.2d 661, 667(1999), reversing, 220 Wis.2d 753, 584 N.W.2d 897.  See also United States v. Simpson, 479 F.3d 492, 497 (7th Cir. 2007).  Today, the assumption is other act evidence should be excluded, not admitted, at trial.  Scheidell, supra.  Wisconsin courts were thus in accord with pre-Revolutionary War colonial courts and English courts.  Natali and Stigall, “Are you going to arraign his whole life?  How Sexual Propensity Evidence Violates the Due Process Clause;” 28 Loy. U. Chi. L.J. 1, 15 (1996);  Harrison’s Trial, 12 How. St. Tr. 834, 864 (Old Bailey 1692)(“Hold, what are you doing now? Are you going to arraign his whole life?  Away, away that ought not be; that is nothing to the matter.”).
 Three centuries ago, there was extremely liberal admissibility of uncharged misconduct evidence during the era of the Star Chamber.  Reed, Trial by Propensity: Admission of Other Criminal Acts Evidenced in Federal Criminal Trials, 50 U. Cin. L. Rev 713 716 (1981); Gregg, Other Acts of Sexual Misbehavior and Perversion as Evidence in Prosecutions for Sexual Offenses, 6 Ariz. L. Rev. 212 (1965).  The view of letting in all past ill deeds was wholly in accord with the chamber's inquisitorial system.
 Contrary to the view of the Star Chamber, the United States Supreme Court has recognized at least twice the unanimous tendency of courts that follow the common law tradition to disallow resort by the prosecution to evidence of a defendant's evil character to establish the probability of his guilt and strongly suggests that introduction of prior crimes evidence solely for the purpose of showing a criminal disposition would violate the due process clause.  Hurtado v. California, 110 U.S. 516, 528 (1884) (stating that the ban against propensity evidence has been preserved by the courts for so long that it “must be taken to be due process of law”); Mulkovich v. State, 73 Wis.2d 464, 471-72, 243 N.W.2d 198(1976)(civilization has recognized the principle that evidence should be confined to the offense charged and bad character should not be proved at trial); Bell v. Texas, 385 US 554, 572-74(1967)(conc. and diss. op. of Warren, C.J.); Michelson v. United States, 335 U.S. 469, 476 (1948) (“The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.”); see also Panzavecchia v. Wainwright, 658 F2d 337(5th Cir. 1981); Kenneth J. Melilli, The Character Evidence Rule Revisited, 4 BYU L. REV. 1547, 1558 (1998). See generally Thomas J. Reed, The Development of the Propensity Rule in Federal Criminal Causes, 1840–1975, 51 U. CIN. L. REV. 299 (1982).
 Due process is transgressed by a state rule that "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Medina v. California, 505 US 437, 445-46(1992).  Evidentiary rules that are deeply rooted in the common law tradition can be fundamental to a fair trial. Brinegar v. United States, 338 U.S. 160, 174 (1949). So it is with the principle prohibiting the introduction of evidence of criminal disposition or propensity.  The use of "other acts" evidence as character evidence to show that the defendant has criminal propensities, and therefore is by inference likely to have committed the currently charged crimes, has been universally condemned as contrary to firmly established principles of Anglo-American jurisprudence for more than three-hundred years. See e.g., McKinney v. Rees, 993 F2d 1378, 1380(9th Cir. 1993).
 Prohibiting the admission of propensity evidence is essential to a fair trial. To determine whether a rule is essential to a fair trial, the Court often examines the history of the rule and whether it is universally applied. In Brinegar v. United States, 338 U.S. 160 (1949), the Court emphasized this principle, stating:
Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystalized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.
Id. at 174; see also In Re Winship, 397 U.S. 358 362 (1970), quoting Brinegar. Further, near universal adherence to a rule "reflect[s] a  profound judgment about the way in which law should be enforced and justice administered." Winship, 397 U.S. at 361-62, quoting Duncan v. Louisiana, 391 U.S. 145, 155 (1968). For example, the Court in Pacific Mutual Life Insur. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 1041-43 (1991), found that imposing reasonable punitive damages does not violate the Due Process Clause because those damages are deeply rooted in Anglo-American law and are universally applied by state and federal courts. Cf. Bowers v. Hardwick, 478 U.S. 186 (1986) (sodomy not protected by Due Process Clause because it is not deeply rooted in American jurisprudence). 
 A primary reason for the rule against propensity evidence is to ensure that the accused is not found guilty merely because a jury might think that he or she is likely to have committed a crime. Regina v. Oddy, 169 Eng. Rep. 499, 502 (Cr.Cas.Res. 1851)  ("evidence of the prisoner being a bad man, and likely to commit the offences there charged" is inadmissible).  A jury will think someone has committed a crime when a case is decided not on the facts proved to a jury, but on emotional pleas to a jury to decide a case.  In Boyd v. United States, 142 U.S. 450 (1892), the Court held evidence of other crimes inadmissible. As the first Justice Harlan wrote for the Court,
 Proof of [other crimes] only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules proscribed by law for the trial of human beings. . . .
 Id. at 458. In Michelson v. United States, 335 U.S. 469, 475-76 (1948), the Court held that "[t]he state may not show defendant's prior trouble with the law . . . - not . . . because character is irrelevant; on the contrary it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge." (Footnote omitted). See also Spencer v. Texas, 385 U.S. 554, 570 (1966) (Warren, C.J., dissenting) ("the use of prior-convictions evidence in these cases is fundamentally at odds with traditional notions of due process . . . because it needlessly prejudices the accused without advancing any legitimate interest of the State" Marshall v. United States, 360 U.S. 310, 312 (1959) (reversing a conviction because the jury was exposed to news reports of the defendant's prior convictions, "evidence of a character which the trial court ruled was so prejudicial it could not be directly offered into evidence").
Given its potential to cause extreme prejudice, it is clear that propensity evidence can fatally infect a state criminal defendant's trial with unfairness.  Benjamin Cardozo, writing as Chief Justice of the New York Court of Appeals, framed the issue rather well:
There may be some cogency in the argument that a quarrelsome defendant is more likely to start a quarrel than one of a milder type, a man of dangerous mode of life more likely than a shy recluse. The law is not blind to this, but equally it is not blind to the peril to the innocent if character is accepted as probative of crime. "The natural and inevitable tendency of the tribunal -- whether judge or jury -- is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge." Wigmore, Evidence vol. 1, § 194, and cases cited.  People v. Zackowitz, 254 N.Y. 192, 198, 172 N.E. 466, 468 (1930).

In Stanley Kramer’s 1961 movie, Judgment at Nuremberg, four German judges who served on the bench during the Nazi regime face a military tribunal to answer charges of crimes against humanity.  The film depicts a fictionalized version of the Judges' Trial of 1947, one of the twelve U.S. military tribunals during the Subsequent Nuremberg Trials. The Judges' Trial focused on certain judges who served before and during the Nazi regime in Germany and who either passively, actively, or in a combination of both, embraced and enforced laws that led to judicial acts of sexual sterilization and to the imprisonment and execution of people for their religions, racial or ethnic identities, political beliefs and physical handicaps or disabilities.  The film is notable for its use of courtroom drama to illuminate individual perfidy and moral compromise in times of violent political upheaval.

German defense attorney Hans Rolfe (Maximilian Schell) argues that the German judges (indeed, the German people) as defendants were not the only ones to aid, or at least turn a blind eye to, the Nazi regime.  Rolfe eloquently argues the side of the Germans who claimed innocence of the Nazi crimes out of ignorance and national expediency, it emerges as a double-edged issue when those who are to administer justice in the criminal system are concerned; they are urged to compromise their own moral principles and shirk responsibility.  This issue, deceptively simple in basic moral terms but highly involved and perplexing when set against hard realities, is the question of how much responsibility and guilt the individual must bear for crimes committed or condoned by him on the order and in the interest of the state.

So I ask you: can a corrupt law be administered fairly?  Or does it corrupt absolutely?  Does a corrupt law destroy all who the law touches be it cop, prosecutor, defense attorney, judge and even defendant? 
In 1994 journalist Dan Baum interviewed John Ehrlichman, President Nixon’s domestic-policy adviser from 1969 to 1973. Ehrlichman was a Watergate co-conspirator who spent a year and a half in prison. By 1994 he was working in Atlanta. In the interview, Ehrlichman blatantly admitted that the war on (some) drugs was designed to crush Nixon’s perceived enemies.

"How did the United States entangle itself in a policy of drug prohibition that has yielded so much misery and so few good results?" Baum wrote in the Harper's piece, “Legalize It All — How to Win the War on Drugs.”:
“You want to know what this was really all about?” [Ehrlichman] asked with the bluntness of a man who, after public disgrace and a stretch in federal prison, had little left to protect. “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

That drugs have been used as a tactic to marginalize and imprison peoples who are inconvenient, so to speak, for conservatives and neo-cons doesn’t really come as a surprise—and not just because Nixon was a noted racist. The War on Drugs was a Nixon invention but, as Baum explains, it’s been useful for every president thereafter, and its function as a suppressive tool didn’t exactly wane—recall the way it defined Reagan’s crack era, which was funneled into black neighborhoods by the CIA and then used to decimate an entire generation. Or the way relatively minor drug offenses are the main contributor to the current mass incarceration crisis, which disproportionately affects young black and brown men.

So what will you do now?  Hope for Hans Rolfe to defend you?  Or reject an immoral law?

At first blush the average person would immediately reject a defendant’s claim that he is entitled to escape from incarceration, especially if he makes no assertion therein that at the time of his escape he was unlawfully confined.  However, after having studied the history of the crime of escape, it can be concluded that the defense of necessity to the crime of escape should, under certain limited conditions, be available to one who is accused of escaping from lawful confinement. 


The crime of escape, as we know it today, is of ancient vintage.  The English scholar Holdsworth informs us that by the end of the medieval period, such offenses as rescous, (the violent taking away of a man who was under arrest and setting him at liberty), escape, and prison breach came into being.  Holdsworth, II A History of English Law, commencing at page 278.  The principle that a defense of necessity justifies an escape was observed by the Common Law scholar Edmund Plowden in 1307, after the following English statute was enacted:
Concerning prisoners which break prison, our Lord the King willeth and commandeth, That none from henceforth that breaketh Prison shall have Judgment of Life or Member for breaking of prison only, except the cause for which he was taken and imprisoned did require such Judgment, if he had been convicted thereupon according to the Law and Custom of the Realm, albeit in Times past it hath been ruled otherwise." Anno. I Edw. II Stat. 2.


Plowden, using nothing more than common sense as authority, interpreted the above statute not to be violated where a prisoner has escaped from prison because the prison was on fire -- "for he is not to be hanged because he would not stay to be burnt."


In 1869, the United States Supreme Court, in United States v. Kirby, 7 Wall. 482, 487, 19 L.Ed. 278 (1869), applied Plowden's thinking to a situation where delivery of the United States mail was temporarily obstructed or retarded by the arrest of the carrier upon an indictment for murder, and held that the defendant could not be convicted for committing that offense.


In the pre-eminent federal authority on the use of the necessity defense to a charge of escape, the United States Supreme Court held that “[a]n escapee who flees from a jail that is in the process of burning to the ground may well be entitled to an instruction on duress or necessity, ‘for he is not to be hanged because he would not stay to be burnt.’”  United States v. Bailey, 444 U.S. 394, 415(1980), quoting, United States v. Kirby, 7 Wall. 482, 487, 19 L.Ed. 278(1869).  Importantly, the majority in Bailey never questioned the existence of the defense of necessity in relation to an escape charge, but unlike Justice Blackmun’s dissent emphasized the importance of surrender as an element of the defense of necessity to an escape charge.  Bailey, 444 U.S. at 415 n.11. 


The Bailey Court noted that the circuit court had erred in holding that an escapee did not act with the requisite intent if he escaped in order to avoid oppressive conditions in prison.  The Court held, rather, that the prosecution sustains its burden of proof on intent when it demonstrates that an escapee knew his actions would result in his leaving physical confinement without permission and that if a defendant contends that circumstances within the prison compelled him to leave, he must raise these matters through the defense of duress or necessity. 


Bailey thus requires a defendant to admit she violated the escape statute and then offer necessity as a justification.  The Court went on to point out that before an escapee is entitled to present evidence to the jury about the conditions in prison which caused him to escape, "he must proffer evidence of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force." Bailey, 444 U.S. at 415.  The bona fide effort to report to proper authorities limits the application of the necessity defense to a charge of escape.  People v. Lovercamp, 43 Cal. App. 3d 823, 831, 118 Cal. Rptr. 110(Ca. App. 1974).  “Thus, the defense becomes meaningless to one who would use it as an excuse to depart from lawful custody and thereafter go his merry way relieved of any responsibility for his unseemingly departure.”  Id. 


The necessity defense promotes the notion that although the harm caused should be avoided, the "harm is outweighed by the need to avoid an even greater harm and to further a greater societal interest."  1 Paul H. Robinson, Criminal Law Defenses 24(a) (1984).  See, 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law 5.4(a) (1986) [hereinafter Substantive Criminal Law] (explaining that "one who, under the pressure of circumstances, commits what would otherwise be a crime may be justified by "necessity' in doing as he did and so not be guilty of the crime in question").


This rationale for the necessity defense has been adopted in Wisconsin.  State v. Brown, 107 Wis.2d 44, 53, 318 N.W.2d 370(1982)(defense of legal justification available in civil traffic case where State itself, through action of law enforcement officer, caused traffic violation); Moes v. State, 91 Wis.2d 756, 768, 284 N.W.2d 66(1979); State v. Olsen, 99 Wis.2d 572, 575-76, 299 N.W.2d 632(Ct. App. 1980).  Wisconsin Statute § 939.45 makes necessity, duress, self-defense and defense of others privileged conduct.  Though the federal due process clause does not require the state to disprove beyond reasonable doubt a statutory privilege like necessity, this burden is imposed upon the state as a matter of Wisconsin law.  Moes v. State, 91 Wis.2d at 768.  Thus the effect of a successful assertion of a necessity defense to a criminal charge (except for homicide) is a not guilty verdict.  Platz, The Criminal Code, 1956 Wis. L. Rev. 350, 366.


Defining what is a sufficient amount of evidence to bring an issue to the jury has depended on both the specific facts of the crime and of the defense.  But it is clear that the defendant need not prove his case: he need only meet a minimum standard of evidence.  Bailey, 444 U.S. at 415.  Thus, the question of necessity is completely for a jury to decide, not a judge, unless the evidence is completely inadequate.  This principle was announced in Brisbee Deportation Case, State v. Wooton, Crim. No. 2065(Cochise Cty., Ariz., Sept. 13, 1919)(holding a judge can exclude evidence of necessity only if the evidence is completely inadequate or could in no way establish a defense of necessity).  See, Arnolds and Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J. Crim. L. & Criminology 289, 292-94(1974); Comment, The Law of Necessity as Applied in the Brisbee Deportation Case, 3 Ariz. L. Rev. 264(1963).  A "defendant is entitled to have the jury consider any theory of defense which is supported by law and has some foundation in the evidence even though such evidence may be weak, insufficient or of doubtful credibility."  United States v. Brown, 785 F.2d 587, 590 (7th Cir. 1986) (quoting United States v. Patrick, 542 F.2d 381, 386 (7th Cir. 1976)); United States v. Lehman, 468 F.2d 93, 108 (7th Cir. 1972), cert. denied.


There is some difference of opinion as to the elements of the defense of necessity.  There is no Wisconsin decision specifying the elements of a necessity defense to the charge of escape.  Other jurisdictions have held that relevant noncontrolling preconditions in establishing a claim of necessity to a charge of escape include the following: (1) the presence of imminent danger of such a nature as to induce apprehension of death or great bodily harm if the escape is not committed, (2) there is no time to complain to authorities or complaints would be futile, (3) no opportunity to resort to courts, (4) force or violence has not been used towards prison/jail personnel, and (5) prisoner reports to authorities when he has attained safety from immediate threat.  See, People v. Lovercamp, 43 Cal. App. 3d 823, 831-32, 118 Cal. Rptr. 110(Ca. App. 1974); People v. Unger, 66 Ill. 2d 333, 362 N.E.2d 319(1977).  The absence of one or more of these conditions does not automatically preclude a claim of necessity.  Unger, 66 Ill. 2d at 342-43; People v. Pelate, 49 Ill. App. 3d 11, 17, 363 N.E.2d 860(1977).  Since Bailey, however, courts have held that a "bona fide effort to surrender or return to custody as soon as the claimed *** necessity had lost its coercive force" was an "indispensable element of such an offer."  People v. Scott, 194 Ill. App. 3d 634, 551 N.E.2d 288, 292(1990), quoting, Bailey, 444 U.S. at 412-13. Courts have set forth a similar formula for duress: (1) threatening conduct which creates in the mind of a reasonable person a fear of death or serious bodily harm; (2) the conduct in fact caused such fear in the mind of the defendant; (3) the fear or duress was operating upon the mind of the defendant at the time of the alleged act; and (4) the defendant committed the act to avoid the threatened harm.  People v. Luther, 394 Mich. 619, 232 N.W. 2d 184, 187(1975). Wisconsin Criminal Jury Instruction 792 sets forth the elements of necessity as follows:The State must prove by evidence which satisfies you beyond a reasonable doubt that the defendant was not acting lawfully under the defense of necessity. The law allows the defendant to act under the defense of necessity only if the pressure of natural physical forces caused the defendant to believe that his act was the only means of preventing [imminent public disaster] [imminent death or great bodily harm to himself (or to others)] and which pressure caused him to act as he did. In addition, the defendant's beliefs must have been reasonable. A belief may be reasonable even though mistaken. In determining whether the defendant's beliefs were reasonable, the standard is what a person of ordinary intelligence and prudence would have believed in the defendant's position under the circumstances that existed at the time of the alleged offense. The reasonableness of the defendant's beliefs must be determined from the standpoint of the defendant at the time of his acts and not from the viewpoint of the jury now. If you are satisfied beyond a reasonable doubt that [SUMMARIZE THE ELEMENTS OF THE CRIME BY REFERRING TO THE RELEVANT INSTRUCTION, THEN CONTINUE WITH THE FOLLOWING] and that the defendant did not act lawfully under the defense of necessity, you should find the defendant guilty. If you are not so satisfied, you must find the defendant not guilty. In State v. Anthuber, 201 Wis.2d 512, 518, 549 N.W.2d 477 (Ct. App. 1996), the court cited an earlier decision as identifying four elements to the necessity defense:               (1) the defendant must have acted under pressure from natural physical forces    (2) the defendant's act was necessary to prevent imminent public disaster, or death, or great bodily harm;                (3) the defendant had no alternative means of preventing the harm; and    (4) the defendant's beliefs were reasonable, citing, State v. Olsen, supra, at 577-78.Anthuber was not a case dealing with an escapee who claimed a necessity defense.  In a footnote, the Anthuber decision noted that Wis JI-Criminal 792 takes a different approach and stated: "While we find no substantive difference in the two tests, we nonetheless believe that the four-part test is simpler to understand and discuss."  Anthuber, 201 Wis.2d at 518-19, at note 1.  This footnote by the Anthuber court is incorrect since Wisconsin Statute § 939.45 does not require, as suggested by the "four elements" approach, that the defendant's act actually be necessary to prevent the harm and that there actually be no alternative means.  The words of the statute indicate a reasonable belief as to each aspect is sufficient.  The “reasonableness of belief” has long been a cornerstone of the necessity defense.  United States v. Ashton, 24 F. Cas. 873 (C. C.D. Mass. 1834)(actual unseaworthiness of ship not necessary where crew had reasonable belief in unseaworthiness of ship)


Coercion is closely related to the defense of necessity.  The distinction between the two defenses is that with coercion the outside force, which influences the actor, has its source in the actions of other human beings.  Necessity involves natural physical forces beyond the actor's control that force him to choose committing the crime as the lesser of two evils.  Bailey, 444 U.S. at 409-10.  Examples of natural physical forces include storms, fires, privations, and drowning.  Olsen, 99 Wis.2d at 576.  The Court of Appeals in Olsen found that the actions of private industry in shipping nuclear fuel did not constitute a natural physical force due to government control of the shipping.  Id.  In deciding if a force is a natural physical force, one examines if the activity is one that is beyond human control.  Id.


In juxtaposing the Court of Appeals decision in Olsen with the Wisconsin Supreme Court decision in Brown one identifies an important trend in modern cases: the blurring of the distinction between coercion an necessity.  Bailey, 444 U.S. at 410.  Rather than focusing on whether a natural physical force exists, modern courts examine the social policies underlying the two defenses.  Id.  That is, did the defendant reasonably believe that his criminal action “was necessary to avoid a harm more serious than that sought to be prevented by the statute defining the offense.”  Bailey, 444 U.S. at 410, quoting, United States v. Bailey, 585 F.2d 1087, 1097-98(D.C. Cir. 1978)


For instance, the Wisconsin Supreme Court in Brown indicated that the defendant was arguing that his speeding was justified since it occurred under circumstances of coercion or necessity.  Brown, 107 Wis.2d at 48.  Brown contains no discussion of whether the law enforcement officer’s actions in causing the defendant to speed were natural physical forces.  Nor does Brown attempt to specify which defense the facts of the case support.  Instead, the Court simply held:
Where the violation of the speeding law is caused by the state itself through the actions of a law enforcement officer, we conclude that the public interest in allowing the violator to claim a defense outweighs the public interest in ease of prosecution….[T]he actor may claim the defense of legal justification if the conduct of a law enforcement officer causes the actor reasonably to believe that violating the law is the only means of preventing bodily harm to the actor or another and causes the actor to violate the law.  Brown, 107 Wis. 2d at 55-56.  Emphasis added.
The modern Bailey-Brown approach of examining if a legal justification exists is the better reasoned position.  This is because the natural physical forces distinction “resulted from the historical accident that most lesser evils cases have in fact involved the forces of nature….The more common modern approach is to drop the natural force limitation on [the] lesser evils [defense].”  2 Paul H. Robinson, Criminal Law Defenses 45, 55(1984).


Another important element of the necessity defense is imminence.  Whether a threat is imminent is tested by the objective standard of the reasonable person.  Olsen, 99 Wis.2d at 578.  Thus,
“The term ‘imminent’ does not describe the proximity of the danger by any rule of mechanical measurement…The law does not fix the distance of time between the justifiable defense and the mischief, for all cases, by the clock or calendar.  The chronological part of the doctrine of defense, like the rest of it, is a matter of reasonableness; and reasonableness depends on the circumstances.  Aldrich v. Wright, 53 N.H. 398, 401-03(1873).
Courts have explained that "future" or "later" or possible and "imminent" are opposites.  United States v. Tokash, 282 F.3rd 962, 970(7th Cir. 2002); People v. Ballard, 59 Ill. 2d 580, 322 N.E.2d 473, 475(Ill. 1975)(“vague impression that someone might get hurt” did not establish necessity defense).  An imminent threat is not debatable.  Olsen, 99 Wis.2d at 578 n.5.  There can be no reasonable option other than violating the law.  Tokash, 282 F.3rd at 971.


Based on the cases reviewed, “imminence” depends on two things: specific facts of a case and the specific attitude of the court.  For instance, in People v. Richards, 269 Cal. App.2d 768, 75 Cal. Rptr. 597(1969) a defendant was inflicted with acts of sodomy and received a death threat before the afternoon of the escape.  He had also exhausted remedies short of escape.  The Richards court held the defendant was not entitled to present to the jury a necessity defense since death threat was not imminent.  Richards, 269 Cal. App.2d at 778.  However, in People v. Harmon, 53 Mich. App. 482, 220 N.W.2d 212(1974) an escapee was threatened with sodomy but did not report threats to guards for fear of reprisals.  The next night the defendant escaped.  The Harmon court held that the necessity defense should go to the jury since imminence is “to be decided by the trier of fact taking into consideration all the surrounding circumstances, including defendant’s opportunity and ability to avoid the feared harm.”  Harmon, 220 N.W.2d at 214.

I am racist in ways I am not even aware.  Most people are no different than me.  We literally do not know what it is like to walk in another person’s shoes, especially if they are of another race.  Researchers refer to this as “implicit bias.”  If you are curious about your racial thinking process, take the Implicit Association Test found at https://implicit.harvard.edu/implicit/
“What often surprises members of the court community and other professionals is that more subtle biases or prejudices can operate automatically, without awareness, intent, or conscious control. Personal attitudes and acquired knowledge often help individuals function more efficiently by making it easier for the brain to recognize and respond quickly to new people or situations. But some attitudes, especially racial and cultural stereotypes, distort decision making by unfairly influencing judgments about others. Although explicit or consciously endorsed racial prejudices in contemporary American society may be on the decline, this subtler form of implicit racial bias persists.”  Elek, J. & Hannaford-Agor, P. First, Do No Harm: On Addressing the Problem of Implicit Bias in Juror Decision Making, Court Review 49 (2013), http://www.ncsc-jurystudies.org/What-We-Do/~/media/Microsites/Files/CJS/What%20We%20Do/First%20Do%20No%20Harm.ashx
This realization came to me as I was working on developing questions about race for a recent trial.  One of the central contributions of the research on implicit bias is the conclusion that even people who do not want to be biased, and indeed believe that they're not, will still carry implicit associations that influence how they evaluate others. 
Trial lawyers are aware that the criminal system at trial attempts to decode racism by voir dire or jury selection (“Raise your hand if you are a racist.”) and jury instructions (“The court is telling you not to be racist.”)  It seems to me that if someone is racist these approaches will do no good.  Most racists today are not going to admit being racist in public.  People who are have some form of implicit bias may feel threatened or insulted.  After all, no one likes to be told when they are wrong.  Finally, taking a cue from those who want to fly a confederate flag, some people may feel a court is insulting their personal independence: the right to hold a racist view.
So what is the best solution (right after self-awareness)?  More diverse jury composition.  “More diverse juries tend to produce decisions less biased by the defendant’s race, presumably because they force jurors to engage with one another on an equal basis in deliberations and to expressly confront different conclusions about the trial evidence that were reached based on the jurors’ unique life experiences and attitudes, including implicit biases.”  Elek, J. & Hannaford-Agor, P., supra.
But what do you do if, well, as in my case, my client was one of three African Americans in the not just on the panel but in the whole courtroom?  Worse given the racial composition of the particular county, striking the panel would change faces but not the races of the potential jurors.  One thing that judges should seriously consider is allowing written juror questionnaires in addition to oral voir dire.  Studies show people are more honest when answering these questionnaires than when asked the question in open court.  Chang, L, & Krosnick, J. A.. Comparing oral interviewing with self-administered computerized questionnaires Public Opinion Quarterly, 1-14 (2010).  Second, contrary to what many judges believe, potential jurors are more likely to lie when a judge asks them voir dire questions than if asked by a lawyer.  So courts should allow for wide open voir dire, even on topics the court has already asked about.  Susan Jones, Judge-Versus Attorney-Conducted Voir Dire: An Empirical Investigation of Juror Candor, Law and Human Behavior, Vol. 11, No. 2 (1987), http://www.juryresearchinstitute.com/img/articles/Judge%20vs.%20Attorney.pdf  Third, right at the start, try and get potential jurors to accept their implicit bias and acknowledge that the particular case may not be right for them.  Attorney Dawn Rablin has a wonderful introduction in voir dire where she explains that everyone has “baggage” that they carry with them.  It is neither right nor wrong it is simply who the person is.  It lets the jurors know you accept them for who they are so the self-disclosure can begin.  She further explains that depending on what “baggage” a person carries with them determines if they are right for a case.  I think it is a wonderful way of getting people to acknowledge they may have certain biases and in a non-judgmental way get them to talk about in the context of a case.
Finally when discussing race with a potential jurors, it is critical for that awareness to emerge in response to open-ended questions and not through the close-ended (yes or no, or "wouldn't you agree") questions that sometimes dominate voir dire.  Cynthia Lee, A new approach to voir dire on racial bias, 5 UC Irvine LR 843 (2015), http://www.law.uci.edu/lawreview/vol5/no4/Lee.pdf
Lee explains, "Open-ended questions that encourage reflection and thought about the powerful influence of race would be better than close-ended questions that simply encourage the prospective juror to give the politically correct response." She shares one example provided by Jonathan Rapping of Gideon's Promise: 
You have just learned about the concept of [implicit racial bias]. Not everyone agrees on the power of its influence or that they are personally susceptible to it. I'd like to get a sense of your reaction to the concept of subconscious racial bias and whether you are open to believing it may influence you in your day-to-day decision-making. Let me start by asking for your reaction to learning about the ideas of implicit, or subconscious, racial bias.
Lee adds other suggestions for bringing racial bias to mind, like asking panelists about significant interactions that they have had with members of other races, or about admired African American figures.