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254.1 Duress/Coercion

    254.1.1 Duress/Coercion: Miscellaneous Issues

    254.1.1.1 Duress/Coercion As Common Law Defense
    254.1.1.2 Distinction Between Necessity And Duress/Coercion
    254.1.1.3 Duress/Coercion By Gangs: Exception To Requirement That Police Be Notified
    254.1.1.4 Duress/Coercion: Applicability To Threats Against Persons Other Than The Accused
    254.1.1.5 Duress/Coercion: Evidence Of Defendant's Intelligence Level To Show Inability To Resist Acts Or Threats Of Duress
    254.1.1.6 Duress/Coercion: Fear Of Suicide By Third Party As Basis For Defense
    254.1.1.7 Duress/Coercion: Prompt Surrender Requirement Limited To Escape
    254.1.1.8 Duress/Coercion: Federal Circuit Model Instructions

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PRACTICE NOTE: "The defense of duress is a common law concept that federal law has incorporated...." (U.S. v. Johnson (9th Cir. 1992) 956 F2d 894, 897.)

See generally, FORECITE National™ 254.1.1.8 [Duress/Coercion:  Federal Circuit Model Instructions].

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PRACTICE NOTE: The difference between duress (or coercion) and necessity can be based upon two conceptual distinctions: (1) the source of the choice: nature or another human; and (2) the reason for excusing the conduct of the defendant: lesser-of-two-evils or no-person-could-be-expected-to resist.  however, regardless of the approach, the essence of the defense is choosing between the lesser of two evils.  (See Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(D) [Duress/necessity] p. 312 (South Carolina CLE, 1994).)

    "The duress defense, through its immediacy requirement, negates an element of the crime -- the intent to commit the act. The defendant does not have the time to form criminal intent because of immediacy and immanency of the threatened harm and need only raise a reasonable doubt as to the existence or non-existence of this fact." (People v. Heath (CA 1989) 207 CA3d 892, 901 [255 CR 120].)

    "The necessity defense, in contrast, contemplates a threat in the immediate future. [Citation.] The defendant has the time, however limited, to consider alternative courses of conduct. The defendant has the burden of proving necessity by a preponderance of the evidence." (Ibid.)

    "A distinction made by some courts and commentators between the actions of human beings (duress) and the forces of nature (necessity) has been rejected by the Model Penal Code. The Code takes the position that the principle of justification or necessity (stated in § 3.02) applies as well 'when the evil apprehended has its source in the action or the threatened action of another person' as when it has its source in 'the forces and perils of the physical world.' [Citation.] This may also be true under Massachusetts law. [Citations.]" (Commonwealth v. Garuti (MA 1987) 504 NE2d 357, 359.)

    "Necessity is the defense one pleads when circumstances forced one to perform a criminal act. Duress, or coercion, applies when human beings force one to act." (U.S. v. Nolan (9th Cir. 1983) 700 F2d 479, 484; see also Perkins & Boyce, Criminal Law (Foundation Press, 1982), 1065-67; LaFave & Scott, Substantive Criminal Law (West, 1986) sec. 5.4, 627-640; MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 5:03, comment [Duress] pp. 458.1-458.2 (Micpel, 1999).)

    The Supreme Court distinguished between the defenses of duress and necessity in United States v. Bailey (1980) 444 US 394, 409-410 [100 SCt 624; 62 LEd2d 575]. The Court observed,

    "Common law historically distinguished between the defenses of duress and necessity. Duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law. While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils. Thus, where A destroyed a dike because B threatened to kill him if he did not, A would argue that he acted under duress, whereas if A destroyed the dike in order to protect more valuable property from flooding, A could claim a defense of necessity. [Citations.]."

    The Supreme Court also noted that, "[m]odern cases have tended to blur the distinction between duress and necessity. In the court below, the majority discarded the labels 'duress' and 'necessity,' choosing instead to examine the policies underlying the traditional defenses. [Citation omitted]." (Bailey, 444 US at 410.)

See generally, FORECITE National™ 254.1.1.8 [Duress/Coercion:  Federal Circuit Model Instructions].

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PRACTICE NOTE: There are two generally recognized responses to the argument that duress should not apply because the defendant failed to call the police.  First, a course of action that has proven futile need not be pursued.  Second, there is no obligation to pursue an alternative that is unreasonable under the circumstances. Both exceptions are applicable in the gang situation. (Rutkowski, "A Coercion Defense For The Street Gang Criminal: Plugging The Moral Gap in Existing Law," 10 Notre Dame Journal of Law, Ethics and Public Policy 137, 194-95 (1996).)

    See also FORECITE National™ 96.3.1.1 [Threats By Prison Gang Members May Be Sufficient For Duress/Necessity Defense].

    See also FORECITE National™ 96.3.1.2 [Threats By Prison Inmates May Be Sufficient Even If Defendant Didn't First Seek Protection].

See generally, FORECITE National™ 254.1.1.8 [Duress/Coercion:  Federal Circuit Model Instructions].

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    254.1.1.4    Duress/Coercion: Applicability To Threats Against Persons Other Than The Accused

PRACTICE NOTE: Some jurisdictions recognize duress as a defense even if the threatened harm is directed toward a third person.  (See People v. Pena (CA 1983) 149 CA3d Supp 14, 25 [208 CR 719]; People v. Gumbs (NY 1984) 478 NYS2d 513, 517; State v. Luff (OH 1993) 621 NE2d 493, 506 [court erred in not giving duress instruction where defendant’s family was threatened]; State v. Green (TN 1995) 915 SW 2d 827, 832 ["Duress is a defense to prosecution where person or third person is threatened with harm which is present, imminent, impending, and of such nature to induce well-grounded apprehension of death or serious bodily injury if act is not done"]; Sam v. Commonwealth (VA 1991) 411 SE2d 832, 838 [duress may be available for criminal act committed due to threats made against defendant’s family]; see also VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL 52.300, comment [Duress] (Lexis, 2000); CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 5.04, comment [Duress] p. 551 (Bar Association of the District of Columbia, 4th ed. 1993); but see contra cases cited in Wharton’s Criminal Law (West, 15th Ed. 1998 Supp.) § 52, p. 32.)

    Moreover, an instruction on coercion/duress may be too limited if "others" are defined as members of the defendant’s immediate family. An instruction limited to kinship could be too narrow in some circumstances. (7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 6.08 [Coercion] Committee comment (1999).) "For instance, in some situations a person might violate the law in order to protect a small child who was a complete stranger." (Ibid.)

See generally, FORECITE National™ 254.1.1.8 [Duress/Coercion:  Federal Circuit Model Instructions].

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PRACTICE NOTE: It has been recognized that testimony as to the defendant’s intelligence level (IQ) should be admissible to aid the jury in making a determination as to the ability of the defendant to resist acts or threats of duress which could affect his or her conduct. (See Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:11 [Defenses-Duress-Commentary] (West, 1999); see also People v. Sanchez (NY 1982) 446 NYS2d 164.)

See generally, FORECITE National™ 254.1.1.8 [Duress/Coercion:  Federal Circuit Model Instructions].

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PRACTICE NOTE: See U.S. v. Toney (7th Cir. 1994) 27 F3d 1245, 1248.

See generally, FORECITE National™ 254.1.1.8 [Duress/Coercion:  Federal Circuit Model Instructions].

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PRACTICE NOTE: The requirement of surrendering to proper authorities promptly after attaining a position of safety (see FORECITE National™ 91.4.2 [Duress/Necessity As Justification For Escape: Whether Immediate Surrender Is Required]) has been held to be limited to escape situations. (See U.S. v. Solano (9th Cir. 1993) 10 F3d 682, 683.) Hence, when duress is raised as a defense to an in-prison offense other than escape, it is error to instruct the jury on the surrender requirement. (Ibid.)

See generally, FORECITE National™ 254.1.1.8 [Duress/Coercion:  Federal Circuit Model Instructions].

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1st Circuit Pattern Jury Instructions - Criminal 5.05.

5th Circuit Pattern Jury Instructions - Criminal 1.35.

6th Circuit Pattern Jury Instructions - Criminal 6.05.

8th Circuit Model Jury Instructions - Criminal 9.02.

9th Circuit Model Jury Instructions - Criminal 6.5.

Federal Judicial Center, Pattern Criminal Jury Instruction 56.