While duress is not a justification for committing a crime, it can serve as an excuse when a defendant committed a crime because they were facing the threat or use of physical force. The defense must establish that a reasonable person in the defendant’s position also would have committed the crime. It resembles self-defense in some respects, since it arises from a threat of imminent death or serious bodily injury, and it requires that the defendant had a reasonable fear that the threat would be carried out. In addition, duress requires the defendant to show that they had no alternative to committing the crime.
Duress is generally not a defense to murder, but a few states may reduce the crime to manslaughter.
Duress often is not an appropriate defense for murder or other serious crimes. States generally have found that killing someone else to avoid being killed is not a sufficient excuse for homicide. A defendant also cannot present a duress defense if they were responsible for getting into the situation that resulted in the threat of death or serious injury. Like self-defense, duress is an affirmative defense, so the defendant must present evidence of each element. The judge will need to decide whether a jury instruction on duress is appropriate. The prosecution may not need to disprove duress beyond a reasonable doubt if the defense produces sufficient evidence to raise it. The court may simply make sure that the defendant’s evidence is sufficient for the instruction and allow the jury to decide which side has presented stronger evidence.
A defendant may face an imminent threat of death or serious harm through the actions or words of another person. The threat does not need to be explicitly stated. If someone held a gun or a knife to the defendant, this will meet the requirement. The threat must occur in the present, rather than the past, although sometimes a threat of future harm may support the defense. Sometimes a defense of duress can arise from a threat to someone close to the defendant, but usually it involves the defendant directly.
The defendant’s fear must be reasonable and specific to the situation. This means that the judge and jury will evaluate the evidence according to an objective standard. Being an especially timid person or being fearful because of past interactions with the person making the threat will not be enough to support the defense.
Elements of DuressThe defendant needs to present evidence that they had no other way to escape the threat. Sometimes the prosecution will defeat a defense of duress by showing that the victim could have simply left the area or stopped the interaction with the person making the threat.
Many people confuse the defense of duress with the defense of necessity. Both of them are based on a defendant being forced to commit a crime to avoid serious harm. The main response to either defense is that the defendant had another option to avert the harm. Sometimes courts combine these defenses, but technically they are separate. The main difference is that duress means that the defendant committed a crime because someone directly forced them to do it. Necessity involves a choice between two bad alternatives that could not be avoided, which arose from the circumstances rather than the actions of a specific person.
Last reviewed October 2023
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