2.3 Duress

Duress in criminal law excuses criminal conduct when a defendant is compelled by threats of imminent harm. It recognizes that extreme coercion may negate criminal intent. However, duress has limitations and can't excuse certain serious crimes like murder.

To claim duress, defendants must prove reasonable fear of harm, immediacy of threat, inability to escape, and proportional actions. The burden of proof shifts between defendant and prosecution. Duress differs from necessity and faces criticism for potential abuse and assessment difficulties.

Duress as a defense

• Duress serves as an affirmative defense in criminal law, potentially excusing a defendant's otherwise criminal conduct
• Asserts that the defendant's actions were compelled by the threat of imminent harm from another person
• Recognizes that a person acting under extreme coercion may not possess the requisite mens rea for criminal liability

Elements of duress

• To successfully invoke the duress defense, the defendant must establish several key elements
• These elements focus on the nature of the threat, the defendant's perception of the threat, and the defendant's ability to avoid the threatened harm
• The specific formulation of the elements may vary by jurisdiction, but most include the following core components

Reasonable fear of harm

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• The defendant must have had a reasonable belief that they or another person faced a threat of serious bodily injury or death
• The fear must be objectively reasonable, meaning that a person of ordinary firmness would have also felt compelled to commit the crime under the circumstances
  • Subjective fear alone is insufficient; the threat must be one that would intimidate a reasonable person
• Examples: Threats at gunpoint, threats to harm a loved one, credible threats of imminent violence

Immediacy of threat

• The threatened harm must have been imminent or immediate, leaving the defendant little time to deliberate or seek help
• Threats of future harm are generally insufficient to support a duress defense
  • However, some courts have recognized a more expansive view of imminence, considering the totality of the circumstances
• Examples: Threat of harm within minutes or hours, ongoing abuse with a pattern of immediate violence

Inescapability of situation

• The defendant must have had no reasonable opportunity to escape the situation or avoid committing the crime
• If safe alternatives were available, the defendant is expected to have pursued them instead of engaging in criminal conduct
  • This element emphasizes that the defendant's actions were a last resort
• Examples: Physical restraint, lack of means to flee, credible threats of harm for non-compliance

Proportionality of actions

• The defendant's criminal conduct must have been proportional to the threatened harm
• The crime committed should not have been more serious than the harm sought to be avoided
  • Proportionality ensures that the defendant's response was reasonable given the nature of the threat
• Examples: Committing theft to avoid serious injury, but not committing murder to avoid minor harm

Limitations on duress defense

• While duress can provide a defense to many crimes, there are some significant limitations on its availability
• These limitations reflect policy judgments about the types of crimes that should not be excusable, even under coercion
• Jurisdictions may vary in their specific limitations, but the following are common restrictions on the duress defense

Murder and voluntary manslaughter

• In most jurisdictions, duress is not a defense to murder or voluntary manslaughter
• The rationale is that the value of human life is so high that one should resist threats to take an innocent life, even at the cost of one's own life
  • This limitation reflects the moral culpability attached to intentionally killing another person
• Examples: Killing a third party under threat of death, assisting in a murder to avoid harm to oneself

Reckless or negligent crimes

• Some jurisdictions do not allow duress as a defense to crimes of recklessness or negligence
• The reasoning is that the defendant's conduct, even if coerced, still fell below the standard of care expected of a reasonable person
  • This limitation holds individuals accountable for the foreseeable risks of their actions
• Examples: Reckless driving under threat, negligent homicide committed under coercion

Duty to resist for police and military

• Police officers, military personnel, and other individuals with special duties may have a higher obligation to resist threats
• These individuals are expected to assume greater risks and maintain their duties, even in the face of personal danger
  • This limitation recognizes the unique responsibilities and training of these professionals
• Examples: Police officer aiding in a crime under threat, soldier committing a war crime under coercion

Burden of proof for duress

• When a defendant raises the defense of duress, the burden of proof is allocated between the defendant and the prosecution
• The specific allocation of the burden may vary by jurisdiction, but typically involves a two-step process
• Understanding the burden of proof is crucial for both the defendant in presenting the defense and the prosecution in overcoming it

Defendant's burden of production

• The defendant bears the initial burden of production, also known as the burden of going forward
• This requires the defendant to present sufficient evidence to support each element of the duress defense
  • The evidence must be enough to create a reasonable doubt about the defendant's guilt
• If the defendant meets this burden, the duress defense is considered properly raised

Prosecution's burden of persuasion

• Once the defendant has met the burden of production, the burden shifts to the prosecution to disprove duress beyond a reasonable doubt
• The prosecution must persuade the jury that the defendant's duress claim is not credible or that one or more elements are not satisfied
  • This burden reflects the prosecution's overall burden to prove guilt beyond a reasonable doubt
• If the prosecution fails to meet this burden, the defendant should be acquitted based on the duress defense

Duress vs necessity defense

• Duress and necessity are related but distinct defenses in criminal law
• Both defenses involve a defendant committing a crime to avoid a greater harm, but they differ in the source of the threat and the specific elements required
• Understanding the differences and similarities between these defenses is important for defendants and legal practitioners

Differences in elements

• Duress involves a threat of harm from another person, while necessity involves a threat from natural or external circumstances
  • Duress requires human coercion, while necessity can arise from any source of danger
• Necessity typically requires a balancing of harms, where the harm avoided must outweigh the harm caused by the criminal act
  • Duress focuses more on the reasonableness of the defendant's response to the threat

Similarities in justification

• Both duress and necessity are based on the idea that a person should not be punished for acting to avoid a greater harm
• These defenses recognize that in extreme circumstances, a person may be justified in violating the law to prevent more serious consequences
  • The defenses reflect the principle that the criminal law should not demand heroism or self-sacrifice

Policy rationales for duress defense

• The duress defense is grounded in several important policy rationales that justify its existence in criminal law
• These rationales focus on the moral culpability of the defendant and the recognition of human frailty in the face of coercion
• Understanding these policy foundations helps to explain the purpose and scope of the duress defense

Moral involuntariness of actions

• One key rationale for the duress defense is that actions taken under coercion are not morally voluntary
• When a person is compelled to act by the threat of serious harm, their free will is overborne, and their actions do not reflect their true intentions
  • This lack of moral voluntariness reduces the culpability attached to the criminal conduct
• Recognizing duress as a defense acknowledges that people should not be punished for actions that were not the product of their free choice

Reduced culpability of coerced actors

• Related to the idea of moral involuntariness, the duress defense recognizes that coerced actors have reduced culpability for their actions
• While the defendant may have committed a criminal act, their blameworthiness is lessened by the extreme circumstances they faced
  • The criminal law generally seeks to punish people in proportion to their moral culpability
• By providing a defense for coerced actors, the law avoids imposing undue punishment on individuals who acted under duress

Criticisms of duress defense

• Despite its important policy rationales, the duress defense is not without criticism and controversy
• Some argue that the defense is open to abuse and may be difficult to properly assess in practice
• Examining these criticisms helps to provide a balanced perspective on the duress defense and its role in the criminal justice system

Potential for abuse and fraud

• One concern with the duress defense is that it may be open to abuse by defendants seeking to avoid responsibility for their actions
• Defendants may fabricate or exaggerate threats to justify their criminal conduct, making it difficult for the justice system to distinguish genuine cases of duress
  • This potential for abuse may undermine the legitimacy of the defense and the criminal justice process
• Critics argue that a more restrictive approach to duress is necessary to prevent fraudulent claims and ensure accountability

Difficulty in assessing threats

• Another criticism of the duress defense is that it can be challenging for courts and juries to assess the credibility and severity of alleged threats
• Determining whether a threat was sufficient to compel a reasonable person to act may involve subjective judgments and complex factual inquiries
  • This difficulty in assessment may lead to inconsistent application of the defense across cases
• Some argue that the duress defense should be limited to more objective and verifiable threats to reduce the risk of erroneous acquittals

Key cases on duress defense

• Several landmark cases have shaped the development and application of the duress defense in criminal law
• These cases provide important precedents and illustrate how courts have grappled with the complex issues surrounding duress
• Examining these key cases helps to understand the evolving legal landscape of the duress defense

United States v. Bailey

• In this case, the U.S. Supreme Court clarified the elements of the duress defense under federal law
• The Court held that defendants must show an immediate threat of death or serious bodily injury, a well-grounded fear that the threat would be carried out, and no reasonable opportunity to escape the threatened harm
  • The Court emphasized that the duress defense is not available if the defendant had a reasonable opportunity to avoid committing the crime
• The Bailey decision established a strict standard for the duress defense in federal cases and has been influential in shaping state law approaches

People v. Anderson

• In this California case, the court addressed the availability of the duress defense in the context of murder charges
• The court held that duress is not a defense to murder under California law, based on the common law rule and public policy considerations
  • The court reasoned that the value of human life outweighs the threat of personal harm, and individuals should be expected to resist coercion to take an innocent life
• The Anderson case illustrates the common limitation on the duress defense for crimes of murder and highlights the moral culpability attached to intentional killings

Model Penal Code on duress

• The Model Penal Code (MPC) provides a influential model for the duress defense that has been adopted by many jurisdictions
• The MPC formulation of duress differs in some respects from the traditional common law approach
• Understanding the MPC provisions on duress is important for jurisdictions that have adopted or been influenced by the MPC

Section 2.09 provisions

• Under MPC Section 2.09, duress is an affirmative defense if the defendant was coerced to commit the crime by the use or threat of unlawful force against themselves or another person
• The threat must be of such a nature that a person of reasonable firmness in the defendant's situation would have been unable to resist it
  • This standard focuses on the reasonableness of the defendant's response to the threat, rather than the specific elements of imminence or escapability
• The MPC also provides a broader defense for crimes other than murder, allowing duress as a defense to offenses like manslaughter and negligent homicide

Comparison to common law

• The MPC approach to duress differs from the traditional common law in several ways
• The MPC does not explicitly require that the threat be imminent or that the defendant have no reasonable opportunity to escape, instead focusing on the reasonableness of the defendant's response
  • This may allow for a more flexible and context-dependent application of the defense
• The MPC also allows duress as a defense to a broader range of crimes, including some forms of homicide, in contrast to the common law's strict limitations
  • This reflects a different balancing of the policy considerations surrounding the defense
• However, like the common law, the MPC ultimately places the burden on the defendant to establish the elements of the duress defense by a preponderance of the evidence