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 VOLUME 11 - CHAPTER 254
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254.1 Duress/Coercion

    254.1.2 Duress/Coercion: Burden Of Proof

    254.1.2.1 Duress/Coercion: Who Has Burden?
    254.1.2.2 Duress/Coercion: Defendant Need Only Raise A Reasonable Doubt
    254.1.2.3 Duress/Coercion: General Reasonable Doubt Instruction Does Not Suffice
    254.1.2.4 Duress/Coercion: Improper To Refer To Theory That Negates Element As "Defense"

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    See FORECITE National™ 254.1.2.2 [Duress/Coercion: Defendant Need Only Raise A Reasonable Doubt].

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

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RATIONALE: In jurisdictions where duress or coercion serves to negate an element of the charge the jury should not be misled into believing that the defendant has the burden of proving that he or she acted under duress or coercion.

POINTS AND AUTHORITIES: Many jurisdictions view duress as negating the criminal intent element of the charge. (See e.g., People v. Heath (CA 1989) 207 CA3d 892, 901 [255 CR 120].) In such a jurisdiction, "[w]hen a predicate warranting a duress instruction has been laid, the government is saddled with the additional burden of showing beyond a reasonable doubt that a defendant's criminal acts were not the product of duress." (U.S. v. Arthurs (1st Cir. 1996) 73 F3d 444, 448; see also State v. Rouleau (CT 1987) 528 A2d 343, 349 ["As a matter of due process, the state bore the burden of disproving duress beyond a reasonable doubt"]; Commonwealth v. Robinson (MA 1981 ) 415 NE2d 805, 814-17.) Under this view, "[t]he defendant bears the burden of coming forward with some evidence of the elements of duress; once a prima facie case is made, the burden shifts to the government to prove beyond a reasonable doubt that the defendant’s acts were not coerced." (Cook & Hermann, Criminal Defense Checklist (West, 1999) § 3.02(8).)

    One court explained the rationale for this rule as follows:

    "Apart from constitutional concerns, several considerations lead us to conclude that in federal criminal trials the Government's burden in disproving at least one element of duress should be proof beyond a reasonable doubt. There is a grave possibility of juror confusion if a jury is instructed, on the one hand, that the prosecution must prove all elements of the crime, including willfulness, beyond a reasonable doubt, and, on the other hand, that the prosecution need only disprove duress by a preponderance of the evidence. Such instructions can create an unacceptable risk that the jury will accept a preponderance of the evidence as sufficient to satisfy the Government's burden of proving willfulness beyond a reasonable doubt. Moreover, a reasonable doubt standard for duress will lessen the risk that a jury will convict solely because of failure of a defense, a consideration we have previously stressed in formulating federal rules of practice for jury instructions. [Citations.]

    "We are not persuaded that juror confusion may be avoided simply by adding an admonition that, regardless of whether the jury disbelieves the duress evidence, the burden remains on the Government to establish every element of the crime beyond a reasonable doubt." 

(U.S. v. Mitchell (2nd Cir. 1983) 725 F2d 832, 836.)

    However, other jurisdictions place the burden on the defendant to prove duress by a preponderance of the evidence. (See e.g., State v. Riker (WA 1994) 869 P2d 43, 52 [duress is an affirmative defense which must be proved by the defendant by a preponderance of the evidence].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

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

    Under the law, __________ is not guilty of a crime if he participated in the [describe offense] only because he believed, and had good reason to believe, that he would be seriously harmed if he did not participate and had no other way of escaping serious harm. And on this issue, just as on all others, the burden is on the government to prove the defendant's guilt beyond a reasonable doubt. To find _______ guilty, therefore, you must conclude beyond a reasonable doubt that when he participated in the [describe offense], he did not have a reasonable belief that such participation was the only way he could save himself from serious harm.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. 56 [Duress] ¶ 2 (1988).]

    The burden of proof is on the government to prove beyond a reasonable doubt the absence of coercion.

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 6.08 [Coercion], Committee comment (1999) p. 69.]

    If the prosecution has failed to prove beyond a reasonable doubt [and to the exclusion of every other reasonable hypotheses] that the defendant committed the crime voluntarily and not under duress, then you must vote to find the defendant not guilty.

[See generally Cook & Hermann, Criminal Defense Checklist (West, 1999) § 3.02(8); State v. Rouleau (CT 1987) 528 A2d 343, 349; People v. Heath (CA 1989) 207 CA3d 892, 901; see also MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 102.04 [Affirmative Defenses: Duress] ¶ 3 (State Bar of Montana, 1990).]

    The state is required to prove the absence of duress beyond a reasonable doubt.

[Source: State v. Ng (WA 1988) 750 P2d 632, 634.]

    Evidence has been presented that the defendant was forced to _____________ (insert act committed by defendant) under threats. A person is not guilty of a crime the person actually committed if:

    1.    The person feared immediate great bodily harm to himself or herself [or] [another person] if the defendant did not commit the crime, and 

    2.    A reasonable person in the same situation would have acted in the same way under the circumstances.

    The burden is on the prosecution to prove beyond a reasonable doubt that the defendant did not act under such reasonable fear.

[See State v. Torres (NM 1983) 657 P2d 1194, 1195-96; cf. NEW MEXICO UNIFORM JURY INSTRUCTIONS - CRIMINAL, UJI Criminal 14-5130 [Duress; Nonhomicide Crimes] (Lexis, 1998).]

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PRACTICE NOTE: "We are not persuaded that simply instructing the jury that it was the state's burden to prove intent beyond a reasonable doubt adequately informed the jury that it was the state's burden to disprove duress beyond a reasonable doubt." (State v. Fuller (CT 1986) 506 A2d 556, 560; see also U.S. v. Mitchell (2nd Cir. 1983) 725 F2d 832, 836 ["... juror confusion may be avoided simply by adding an admonition that, regardless of whether the jury disbelieves the duress evidence, the burden remains on the Government to establish every element of the crime beyond a reasonable doubt"].)

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

  VOLUME 11 - CHAPTER 254

    254.1.2.4    Duress/Coercion: Improper To Refer To Theory That Negates Element As "Defense"

    See FORECITE National™ 6.2.12 [Defense Theory That Negates Element Should Not Be Referred To As A "Defense"].