FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 254
Go to Volume 11 Table of Contents  -  Go to Chapter 254 Table of Contents

254.1 Duress/Coercion

    254.1.4 Duress/Coercion: Applicability To Homicide

    254.1.4.1 Duress/Coercion Applicability To Intentional Homicide
    254.1.4.2 Duress/Coercion Applicability To Unintentional Homicide
    254.1.4.3 Duress/Coercion Should Be Applicable To Capital Murder Based On Prior Murder Or Death Qualifier
    254.1.4.4 Felony Murder: Applicability Of Duress/Coercion To Underlying Felony

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 254

PRACTICE NOTE: Some jurisdictions hold that when defendant is charged with intentional, but non-capital, murder the defense of duress is available. (See e.g., People v. Moran (CA 1974) 39 CA3d 398, 417 [114 CR 413]; see also Welch v. State (MS 1990) 566 So2d 680, 684-85; Spunaugle v. State (OK 1997) 946 P2d 246, 248-50.)

    However, the prevalent view is that duress is not a complete defense to intentional murder. (See Cook & Hermann, Criminal Defense Checklist (West, 1999.) § 3.02(3); U.S. v. LaFleur (9th Cir. 1991) 971 F2d 200, 206 ["[A] defendant should not be excused from taking the life of an innocent third person because of the threat of harm to himself...[Moreover,] duress cannot legally mitigate murder to manslaughter"]; R.I. Recreation Center v. Aetna Casualty Insurity Company (1st Cir. 1949) 177 F2d 603, 605; see also State v. Berndt (AZ 1983) 672 P2d 1311, 1314 ["duress is unavailable for offenses involving homicide or serious physical injury"]; Wright v . State (FL 1981) 402 So2d 493, 498-500; Watson v. State (MS 1951) 55 So2d 441, 443; 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 6.08 [Coercion], Committee comment (1999).)

    See also FORECITE National™ 254.1.4.2 [Duress/Coercion Applicability To Unintentional Homicide].

    See also FORECITE National™ 254.1.4.4 [Felony Murder: Applicability Of Duress/Coercion To Underlying Felony].

RESEARCH NOTES:

AmJur 2nd Criminal Law §100; 22 Corpus Juris Secundum, Criminal Law § 44.

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

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 254

PRACTICE NOTE: Even though duress is generally not a defense to intentional homicide, "it is a defense to a killing done by another in the commission of some lesser felony participated in by the defendant under duress." (See e.g., LaFave & Scott, Substantive Criminal Law § 5.3(b) (2d ed. 1986) p. 618; see also State v. Hunter (KS 1987) 740 P2d 559, 568-70 [statutory exception for murder interpreted to cover intentional killing but not felony murder]; Tully v. State (OK 1986) 730 P2d 1206, 1210 [error not to allow duress defense on felony-murder charge]; but see State v. Rocheville (SC 1993) 425 SE2d 32, 35-36 [court rejected argument that unintentional killing committed under duress should be a category of voluntary manslaughter].)

    By the same rationale, when the killing resulted from recklessness or on commission of a dangerous felony, the defense of duress/necessity may be applicable since the killing is not intentional. (See generally, Dressler, Exegesis Of The Law Of Duress: Justifying The Excuse And Searching For Its Proper Limits, 62 S.Cal. L.Rev. 1331 (1987).)

    See also FORECITE National™ 254.1.4.4 [Felony Murder: Applicability Of Duress/Coercion To Underlying Felony].

    See also FORECITE National™ 254.1.4.1 [Duress/Coercion Applicability To Intentional Homicide].

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

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 254

    254.1.4.3    Duress/Coercion Should Be Applicable To Capital Murder Based On Prior Murder Death Qualifier

PRACTICE NOTE: Some states preclude the defense of duress when the defendant is subject to prosecution for a capital charge. (See e.g., California Penal Code § 26; see also IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI 1509 [Threats And Menaces Defenses] (Idaho Law Foundation, Inc., 1995) [duress not applicable to crime which is punishable with death].) However, if the only basis for the capital charge is a felony murder special circumstance based on a felony to which the duress defense applies, then duress should be available because, if there is no underlying felony then there is no capital charge. (See FORECITE National™ 254.1.4.4 [Felony Murder: Applicability Of Duress/Coercion To Underlying Felony].)

    The same rationale would also apply where the first degree murder charge is predicated on a felony to which duress applies. (See e.g., U.S. ex rel. Reed v. Lane (N.D.Ill. 1983) 571 FSupp. 530, 533-34 [statute providing that defense of compulsion was not available for offense "punishable with death" was unconstitutionally applied to defendant who, although subject to death penalty on basis of two murder convictions, was allegedly compelled to participate in first murder at time when he could not have reasonably anticipated that second murder would take place; defendant was entitled to raise compulsion defense under statute at time of first murder, which, of itself, was not "punishable with death," and thus, trial court's refusal to give compulsion instruction deprived defendant of his due process rights].)

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

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 254

    254.1.4.4    Felony Murder: Applicability Of Duress/Coercion To Underlying Felony

PRACTICE NOTE: Even if the defense of duress, coercion or compulsion does not apply to intentional killings (see e.g., State v. Glass (LA 1984) 455 So2d 659, 664; but see FORECITE National™ 254.1.4.1 [Duress/Coercion Applicability To Intentional Homicide]), the defense should apply to unintentional murders based on the felony murder doctrine. (See Joseph & LaMonica, LOUISIANA CIVIL LAW TREATISE CRIMINAL JURY INSTRUCTIONS 6.13, comments [Justification-Compulsion] (West, 1994).) This is so because the defendant’s liability is predicated on his or her culpable participation in the underlying felony. (Ibid.; see also Tulley v. State (OK 1986) 730 P2d 1206, 1210 [duress instruction allowed in felony murder case]; but see State v. Rumble (MO 1984) 680 SW2d 939, 940-41] [duress inapplicable to second degree felony murder even though duress can apply to the underlying felony]; MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 310.24, Use Note 1 [Duress] (Missouri Supreme Court Publications, 3rd ed. 1987).)

    As one court explained: "An exception to the rule that duress is not available as a defense to murder is in felony murder cases, where one confederate is held responsible for a killing committed by his co-actor during the commission of the underlying felony. If the defendant participated in the underlying felony under threat of death or serious harm by his co-actor, and the co-actor kills another in the commission of the felony, duress excuses the defendant's participation in the underlying felony and thereby excuses the defendant for the unintended killing committed by his co-actor." (Pugliese v. Commonwealth (VA 1993) 428 SE2d 16, 26; State v. Dunn (KS 1988) 758 P2d 718, 725-26; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.3(b), p. 618; but see State v. Ng (WA 1988) 750 P2d 632, 636 [duress not applicable to murder but special four-part defense to felony murder is applicable].)

    This is so because "[i]t is compatible with the common law policy of duress that the defense should attach where the defendant consented, by duress, only to the commission of the lesser crime and not to the killing, and, at the time of his participation in the lesser felony, had reason to believe his life or the life of another was immediately in danger unless he participated." (Tully v. State (OK 1986) 730 P2d 1206, 1210.)  A person is justified in aiding a robbery if he or she is forced by threats to do so to save his life. (LaFave, Scott, Substantive Criminal Law (West, 1986) § 5.3(b), p. 618.)  It follows that the defense of duress should also apply to a charge of felony murder if those who coerced the person to participate in the robbery unexpectedly kill someone while committing that crime.  (Ibid.)

    The rule that compulsion is not a defense to murder evolves from the rationale that when a person was confronted with a choice between two evils, such as his own death or the death of another, the individual should sacrifice his or her own life rather than escape by the murder of an innocent person. (State v. Hunter (KS 1987) 740 P2d 559, 568.) However, Hunter responded to this question by holding that "any limitation to the defense of duress should be confined to crimes of intentional killing and not to killings done by another during the commission of some lesser felony." (Hunter, 740 P2d at 568.) The court went on:

    "[I]f A compels B at gunpoint to drive him to the bank which A intends to rob, and during the ensuing robbery A kills a bank customer C, B is not guilty of the robbery (for he was justified by duress) and so is not guilty of felony murder of C in the commission of robbery. The law properly recognizes that one is justified in aiding a robbery if he is forced by threats to do so to save his life; he should not lose the defense because his threateners unexpectedly kill someone in the course of the robbery and thus convert a mere robbery into a murder." 

(Hunter, 740 P2d at 568; see also People v. Serrano (IL 1997) 676 NE2d 1011, 1015 [if the defendant was compelled to commit this robbery, should not be convicted of a murder that those who compelled him unexpectedly committed].)

    See also FORECITE National™ 254.1.4.2 [Duress/Coercion Applicability To Unintentional Homicide].

    See also FORECITE National™ 92.9 [Felony Murder, Statutorily Specified Offenses].

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