The defense of duress is allowed in criminal prosecutions where a defendant commits a crime only because he held a reasonable fear of serious bodily injury or death to himself or someone else if he refused to commit the crime (CalCrim No. 3402)

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In legal terms, duress means the use of threats of injury, violence or constraint, which is brought against the defendant, or another person, and designed to compel the defendant to act against his will or better judgement.

 

Note: The threat that compels the defendant to commit a crime may be express or implied; however, the threat must originate from another person, as opposed to the existence of a threat to the defendant or someone else that is not designed to compel the defendant to act.

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For example, the defense of duress may apply where the defendant commits a theft crime only because he is threatened by another person with physical injury if the defendant does not commit the theft. On the other hand, if the defendant steals food as a means to survive, the defense is of necessity, not duress, because the threat of starvation did not originate in another human being.

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Imminent Injury Required: The defense of duress is available only if the injury threatened against the defendant or another person is imminent. In other words, the threat of future harm to the defendant or another person is insufficient to raise a defense of duress.

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For example, the defense of duress is likely available to a criminal charge of grand theft auto (GTA) if the defendant is informed that his wife will be killed if he does not steal a car by the end of the day. On the other hand, the defense of duress is not likely available to the same defendant if he is informed that his wife will be killed if he does not steal the car by the end of the month. Of course, every factual situation is different and whether or not the injury is imminent in any particular case where the defendant relies on the defense of duress is decided on a case by case basis.

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Fear of Injury Required: The defense of duress is available where the defendant commits a crime as a result of a fear of serious bodily injury or death to himself or to another person, usually a family member. The fear must be actual (subjective to the defendant) and reasonable (objective to the average person in the same or similar circumstances). Also, fear of destruction of property is not ordinarily sufficient to raise a duress defense. For example, the defendant cannot raise a duress defense if the threat that coerced the defendant to commit a crime was that his car would be vandalized if he refused to commit the crime.

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Note: Injury includes apparent and non-apparent injury associated with sex crimes (i.e. the forcible crimes of rape, sodomy, oral copulation, or sexual penetration with a foreign object, etc.).

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Does Not Apply to Murder: The defense of duress dos not apply to allow the defendant to kill another person. For example, if the defendant is threatened with death unless he kills another person, and because of that threat of death the defendant actually kills the person he was ordered to kill, then the defendant may still be charged with the crime of murder. Also, a murder charge is not reduced to a voluntary manslaughter charge even if the defendant killed the victim only because of the threat of being killed himself. Notice that it does not matter if the defendant is attempting to save a life when he is coerced to kill another person…the charge against the defendant remains a murder charge.

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Common Usage: A defense of duress can apply as a defense to just about any type of criminal conduct except homicide; however, in practice, the defense usually applies to theft crimes (where a person threatens the defendant with injury if the defendant does not steal for the person levying the threats) and drug crimes (where a person threatens the defendant with injury or death to the defendant or the defendant’s family if the defendant does not deliver illegal drugs to a third party).

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Burden of Proof: The defendant bears the burden of proving that his criminal conduct was the result of a coercion or duress. The defendant must prove this fact by a preponderance of the evidence, which means that the defendant must show that more likely than not he committed the crime only as a result of a threat of serious bodily injury or death to himself or another person.

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Duress v. Necessity: Duress is defense where another person threatens the defendant with serious bodily injury or death if the defendant refuses to commit a crime. Necessity is a defense where the defendant needs to commit a crime in order to avoid a greater harm regardless of whether another person threatened the defendant with injury or death. Other differences between the two defenses include the fact that the defense of duress does not require the defendant to attempt to avoid a greater harm by way of his criminal conduct; alternatively, the defense of necessity can be used only where the harm to be avoided by the defendant’s criminal conduct is substantially greater than the harm caused by his crime. Both defenses are affirmative defenses, which means that the defendant must provide evidence that the defense is applicable. Finally, the defenses of duress and the defense of necessity may be argued simultaneously; however, as stated, there is a difference in the required intent to be proved by the defense attorney.

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Note: The fact that the defendant is required to raise and prove a duress defense does not violate the rule that the district attorney must prove every element of a criminal charge beyond a reasonable doubt. In fact, the defendant’s burden to prove he committed the crime only as a result of threats does not rise until the prosecutor has proved his case beyond a reasonable doubt. However, in practice, the defendant usually alludes to facts, through cross-examination, that demonstrate a duress defense; this is done while the district attorney is presenting his case against the defendant.

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To learn more about defenses to criminal actions, including the defense of duress, contact our successful legal team any day of the week. Our criminal defense lawyers will patiently explain your rights and defense options as they apply to your criminal charges. There is no fee for an initial in-office consultation. Call today!

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