Crime is an unfortunate part of our society. The severity of and motives behind crime varies. These two items determine the degree of punishment, but what if a perpetrator commits a crime they didn’t want to commit? What if at the time of the incident, they were under duress?

What is Duress?

Duress is when force, threats, false imprisonment, etc. are used to make someone perform an action they do not wish to or would not be in their best interest. An example of this could be forcing someone to enter into a contract or perhaps something more serious such as a drug drop.

The Duress Defense


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If someone unwillingly participates in a crime, they could use a criminal defense known as the duress defense. However, specific criteria must be met for this defense to be applied. These conditions normally include:

  • An imminent threat of death or serious bodily harm. The court may consider a threat to the person’s family valid as well.
  • A reasonable fear that this threat would be carried out.
  • No reasonable escape or alternative except to proceed with the illegal act.
In 2013, the 5th District Court of Appeals in Florida determined that the defendant’s case of drug trafficking via a fraudulent prescription met the elements of duress given that a threat was made, the defendant had sufficient belief it would be carried out, and he was watched by the coercer as he filled the prescription. The court left open the idea of whether or not an escape was possible while the defendant spoke with the pharmacist.

Limitations

The duress defense does have limitations. It cannot be applied to cases of murder and while the definition of duress can be fairly board and loose. The duress defense has a narrow scope. A threat of violence must be made. Past violence will not suffice and as the U.S. Department of Justice Criminal Resource Manual states: “As a general rule, one who escapes from a penal institution is not excused even though faced with an immediate threat of death or serious bodily harm if there is a reasonable and viable alternative to the act of escaping.” 

Burden of Proof

The duress defense is an affirmative defense meaning the defense must show proof of the duress. Frederick Hafetz of Hafetz & Necheles notes that, “[It’s] not unconstitutional for a defendant to come forward with some level of evidence.” However, courts have differed on whether the prosecution must disprove this defense beyond a reasonable doubt.

There is an argument that in most cases the prosecution will not be able to call a witness to refute the duress claim given that the person called would be the alleged coercer. The witness would likely assert their Fifth Amendment right to not self-incriminate. Although in certain jurisdictions, such as New York, an affirmative defense like duress means, “the defendant carries the burden of proof.” Says Hafetz.

Considerations to a Possible Duress Defense

The duress defense is narrow; although each case is situational and the specific facts of the case may shift how the court views it. One such theoretical consideration is long-term abuse. The threat of violence is a criterion for this defense, but on-going violence may not meet this condition. Past violence or violence already committed does hold, but even under the threat of imminent violence, those invoking the duress defense still must show that an escape or alternative outcome was not possible.

The concept of intent is also something to consider. As Hafetz states, “Mens Rea is required in criminal statutes. Lack of intent… i.e. ‘this wasn’t an act of my own free will,” may hold some ground. 

Conclusion

The court requires strict rules regarding this defense because of potential abuse that may result if specific criteria and rules are not established and applied. Nevertheless, some criminal acts happen due to some strange and unfortunate circumstances. The law does provide relief for these odd albeit rare situations. As always, an experienced criminal defense attorney is always the best resource in these circumstances.