The Criminal Defense of Duress

The Criminal Defense of Duress

The defense of duress is available to criminal defendants who were forced to commit a crime under threat of violence or because of the actual use of violence. In these circumstances, the courts have determined that a defendant was deprived of the free will to make a decision to commit the crime and thus should not be held legally responsible for it. The defense of duress has four elements. First, there must a threat of death or serious bodily harm. Second, that threat must be immediate or imminent. Third, the threat must create a reasonable fear in the defendant. Fourth, there must be no reasonable means for the defendant to escape the threat except by committing the crime.

Threat of Harm

In order for a duress defense to be successful, the defendant must have experienced a serious threat, usually rising to at least the level of significant bodily harm. This threat, however, does not have to be directed at the defendant personally. Instead, most courts also allow the defense to be used if the threats are made against others with whom the defendant has a significant relationship, such as a spouse or child. Thus, a duress defense could arise where a defendant is told that if he does not commit the crime, his wife will be killed.

Additionally, the threat of harm may be conveyed by words or actions. For instance, the defendant may be told that he will be killed or injured unless he completes the crime, or he may have a gun placed to his head without any words being spoken. Either of these will be sufficient for purposes of duress. Most important to establishing a duress defense, however, is the requirement that the threat is immediate and imminent. This means that the criminal defendant must believe that the threat will be immediately acted on if he or she does not comply. Thus, a threat made several days before will not be sufficient for purposes of duress, nor will a threat that the defendant will be harmed in the next month, year, or sometime in the future.

Reasonable Fear

In order for a criminal defendant to rely on the defense of duress, it is not enough that a threat occurred. Instead, the criminal defendant must also have had a reasonable and objective fear that the threat would be acted upon. This requires that a reasonable person in similar circumstances would also have a fear of death or bodily injury. For example, if a defendant was jokingly told by his co-conspirator that he had better hold up his end of the bargain or “I’ll kill you,” this would probably not be sufficient to establish duress, since the threats were objectively not genuine. Similarly, if a defendant has no reason to believe that threats will be followed through on, his or her fear would not be reasonable.

No Means of Escape

Finally, a duress defense will only apply if the criminal defendant had no reasonable means of escaping the situation. If the defendant could leave the scene of the crime, overcome the person threatening him or her, or otherwise avoid the situation leading to duress, courts have held that the duress defense does not apply because the defendant could have, and should have, escaped from the situation.

Duress and Murder

Although the defense of duress is generally applicable to a wide variety of criminal charges, a majority of states have declined to allow the duress defense to apply in homicide cases, since the criminal act itself involves the taking of a life. A few states will allow for homicide charges to be lessened when duress is established, such as by reducing murder charges to manslaughter