Posted: May 19th, 2017

While on a business trip, Kevin met a woman in the hotel bar. They struck up a conversation. A while a later a gentleman friend of the woman suddenly appeared and joined them. The three chatted about their lives and families. The next day Kevin received a package at his hotel, along with an envelope. The envelope contained a letter and a photo of Kevin’s 4-year son. The letter instructed Kevin not to open the package but to take it with him on his flight home. It said he’d be “met on arrival,” and added that “Bad things could happen” if he didn’t do as he was told or called the police. The next morning, when he was going Criminal Law – Professor Humbach Spring, 2011 Page 16. through airport security for his flight home, Kevin was arrested on a charge of possessing of cocaine with intent to distribute. Under the usual (non-MPC) approach:

While on a business trip, Kevin met a woman in the hotel bar. They struck up a conversation. A while a later a gentleman friend of the woman suddenly appeared and joined them. The three chatted about their lives and families. The next day Kevin received a package at his hotel, along with an envelope. The envelope contained a letter and a photo of Kevin’s 4-year son. The letter instructed Kevin not to open the package but to take it with him on his flight home. It said he’d be “met on arrival,” and added that “Bad things could happen” if he didn’t do as he was told or called the police. The next morning, when he was going Criminal Law – Professor Humbach Spring, 2011 Page 16. through airport security for his flight home, Kevin was arrested on a charge of possessing of cocaine with intent to distribute. Under the usual (non-MPC) approach: a. The duress defense would not apply because the letter did not threaten harm to Kevin personally but rather to another person. b. A serious (though perhaps not insurmountable) stumbling block to using duress as a defense is that the letter does not explicitly threaten immediate consequences if Kevin refuses to comply. c. Both of the above d. Kevin would have a strong case for using the defense of necessity.