Unit 36: Duress
Gonzales Memorandum (CP)
Mike Anderson audio clip from This American Life (start at 7:03 in the audio file)
Duress differs from necessity because it applies in cases where the threat is human. Although jurisdictions vary, a duress defense is generally recognized if the following five elements are met:
1) An individual threatened to use deadly force against the actor or a third person (at common law a third person target must a member of the actor’s family) unless the actor committed the offense;
2) The actor reasonably believed this threat to be genuine;
3) The threat was imminent at the time the actor committed the criminal offense;
4) Committing the criminal offense was the only reasonable method of escape; and
5) The actor is not responsible for creating or instigating the threat
A successful duress defense means that the coercing party will be considered responsible for the actor’s conduct, and may be criminally liable. At common law and as expressly established by statute in 17 states today, duress is entirely unavailable in homicide cases. Other states allow an imperfect duress defense in homicide cases, which reduces the charge to manslaughter. Jurisdictions are split on whether a duress defense should be allowed in a felony-murder context.
Duress defenses are sometimes raised by prisoners who attempt to escape from intolerable prison conditions. Once a prisoner has escaped and the cause of the duress or necessity has abated, most courts require the escaped prisoner to surrender himself to custody or forsake the defense.
Some scholars have argued for a “situational duress” defense for duress arising from a non-human source (e.g., Dudley and Stephens).
Commentators have also suggested expanding the duress defense to cases that lack direct threats, but which involve individuals who have been brainwashed, or who were raised into a violent or criminal community. These arguments suggest that some people are forced by circumstance to commit crimes, and are in some sense unable to reason through alternative options. These proposals have been criticized as undermining the assumptions underlying the voluntary act requirement. Recall that the voluntary act requirement restricts punishment to those who choose to act criminally, and presupposes that people are capable of making choices (see Unit 7).
How should the law handle a battered spouse who commits a criminal offense at the behest of an abusive partner? Such cases often fail to meet the elements of duress – the battering spouse’s demand can be menacing without communicating an explicit threat, for instance, or a prosecutor might argue that the battered spouse is at fault by staying with the abusive spouse. Nevertheless, some courts have allowed the use of battered spouse testimony to help prove that the battered spouse feared an imminent threat, that such a fear was reasonable, and that a “learned helplessness” prevented the spouse from escaping.
Model Penal Code
Duress is a defense under MPC 2.09(1) if the defendant: (1) was compelled to act by the use or threatened use of force upon him or another person (this threat need not have actually been made, as long as the defendant reasonably believes it was made), and (2) a reasonable person in the same situation would not have been able to resist the coercion. Duress is not available if the defendant recklessly put himself in the situation where coercion was likely. If the defendant negligently put himself in the position, the duress defense is available unless negligence is sufficient to establish guilt for the charged offense.
The Model Penal Code duress defense differs from the common law defense in three ways: (1) it abandons the imminence and deadly force requirements; (2) it permits a duress defense in homicide cases; and (3) the threatened individual need not be the defendant or a member of the defendant’s family for the defense to apply. The Model Penal Code duress is similar to common law in that it only applies to threats arising from human sources, and it only applies if the threat is to a human body (as opposed to an economic or social threat).
Model Penal Code duress can apply if the use or threatened use of force causes the defendant to act criminally, even if that action was not the coercer’s intent. For example, a prison inmate can argue duress if he escaped because of fear resulting from another inmate’s threat of murder. The Model Penal Code does not recognize a “situational duress” claim.
MPC 2.09(1) imposes an objective “person of reasonable firmness” standard. The MPC Commentary explains that this standard is based on “men in general.” Thus, it does not consider the actor’s subjective experience or background (except in extreme cases, such as insanity). This objective standard limits the efficacy of battered spouse testimony in a duress defense.
Questions for Review:
Q1. Melissa used to be an expert bank robber, but she left that life behind after meeting Jeff. Melissa and Jeff have lived together for years and are now engaged. Jeff goes missing a month before the wedding, and around the same time Melissa receives a letter from a former accomplice named Erin. Erin claims that Jeff is in her custody, and that she will kill Jeff in one week unless Melissa robs one last bank. Erin also says that she will kill Jeff if the police are told anything. Reluctantly, Melissa performs the last bank robbery, but is caught and arrested. Melissa raises a duress defense. Will this defense be successful at common law? Under the Model Penal Code?
Q2. Alex and Sarah are married. Sarah use to be an expert escape artist, but Alex is an abusive spouse and Sarah now spends most of her time at home tending to Alex, afraid to do much else. Alex’s brother David is in prison, where he is repeatedly attacked and threatened by the staff and other inmates. Alex demands that Sarah break into the prison and free David. David and Sarah hatch an escape plan over the phone. On the night of the escape, something goes wrong and a prison guard notices David and Sarah escaping. In a panic, David bludgeons the guard over the head, knocking him out. They then make it back to Sarah and Alex’s home, but the police find them there a few hours later, and arrest all three. Of what offenses are Alex, David, and Sarah guilty under the common law?
Q3. What arguments exist for treating duress as an excuse defense? As a justification defense? Which do you agree with?
Q4. What arguments exist for and against allowing a duress defense in homicide cases?