Duress Defense
What is the Duress Defense?
Duress is a defense where the defendant committed a crime because of a threat of imminent death or serious bodily harm from another person. The defendant must have had no reasonable opportunity to escape the threat.
Source: United States v. Contento-Pachon, 723 F.2d 691 (9th Cir. 1984)
Definition
Duress is an excuse defense that applies when a defendant commits a crime because they were coerced by another person's unlawful threat of imminent death or serious bodily harm to the defendant or a close family member. Unlike justification defenses such as necessity, duress does not render the conduct lawful but rather excuses the defendant from punishment because their free will was overborne by the threat. The rationale is that the law should not punish individuals who act under extreme coercion because they had no meaningful choice.
The traditional elements of duress require a threat of imminent death or serious bodily harm, that the threat would cause a reasonable person to commit the crime, that the defendant had no reasonable opportunity to escape or avoid the situation, and that the defendant did not recklessly or negligently place themselves in the situation where duress was likely. The threat must come from another human being; threats from natural forces fall under the necessity defense instead.
The most significant limitation on the duress defense is that it is not available for murder at common law. The rationale is that taking an innocent life is never excusable regardless of the threat, because the defendant is expected to sacrifice their own life rather than take another's. The Model Penal Code is more lenient, applying duress to all crimes including homicide, and uses a broader standard of whether a person of reasonable firmness in the defendant's situation would have been unable to resist the coercion. The MPC also does not require that the threat be imminent, only that it be present and ongoing. Duress is also unavailable if the defendant voluntarily joined a criminal enterprise in which coercion was foreseeable.
Key Elements
- 1A threat of imminent death or serious bodily harm from another person
- 2The threat was such that a reasonable person would have yielded to it
- 3The defendant had no reasonable opportunity to escape or avoid the threat
- 4The defendant did not recklessly place themselves in the coercive situation
- 5At common law, duress is not a defense to murder
Landmark Cases
United States v. Contento-Pachon
723 F.2d 691 (9th Cir. 1984)
Distinguished between duress and necessity in the context of a drug smuggling case where the defendant claimed threats from a cartel
Dixon v. United States
548 U.S. 1 (2006)
Held that the defendant bears the burden of proving the duress defense under federal law
State v. Toscano
74 N.J. 421 (1977)
Adopted the MPC approach to duress, eliminating the requirement that the threat be of death and applying a person of reasonable firmness standard
Exam Tips
- Distinguish duress from necessity: duress involves a human threat, necessity involves natural circumstances or a choice of evils
- Remember that duress is not a defense to murder at common law; note the MPC exception if the jurisdiction follows the MPC
- Check whether the defendant voluntarily entered a situation where coercion was foreseeable, such as joining a gang
- The threat must be imminent at common law; ongoing but non-imminent threats may suffice under the MPC
Common Mistakes to Avoid
- Confusing duress with necessity; duress requires a human threat, while necessity involves choosing between two harms from circumstances
- Forgetting the murder exception; duress is not a defense to intentional killing at common law
- Assuming that any threat is sufficient; the threat must be of death or serious bodily harm and must be imminent
Memory Aid
"Do it or die" -- duress requires a threat so severe that a reasonable person would have no choice but to comply