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

    254.1.6 Imperfect (Partial) Duress/Coercion

    254.1.6.1 Imperfect (Partial) Duress/Coercion As Defense To Murder
    254.1.6.2 Imperfect (Partial) Duress/Coercion As Relevant To Intent To Kill, Malice, Premeditation And Deliberation
    254.1.6.3 Duress/Coercion Relevant To Mental Elements Of Murder Even If Not A Complete Defense

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

 VOLUME 11 - CHAPTER 254

PRACTICE NOTE: "Imperfect duress" (i.e., honest but unreasonable) is not a complete defense to murder. (See People v. Anderson (CA 1991) 233 CA3d 1646, 1662-67 [285 CR 523].) Nor can it reduce felony murder to manslaughter. (Ibid; see also People v. Bacigalupo (CA 1991) 1 C4th 103, 126, fn 4 [2 CR2d 335].) However, there remains a question of whether unreasonable duress may reduce malice murder to manslaughter. (Anderson assumes arguendo that imperfect duress may negate malice; but see FORECITE National™ 255.4.1.1 [Imperfect Self Defense: Defense Theory To Charge Of Murder].)

    See also FORECITE National™ 254.1.6.2 [Imperfect (Partial) Duress/Coercion As Relevant To Intent To Kill, Malice, Premeditation And Deliberation].

    See also FORECITE National™ 92.7.3.4 [Honest Belief In Self Defense As Defense Theory To Premeditation, Deliberation Or Other Mental Elements Of Murder].

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

RATIONALE: Even if the evidence fails to support complete duress, partial or imperfect duress may still negate mental elements such as malice, premeditation or deliberation.

POINTS AND AUTHORITIES: Even if complete duress is not supported by the evidence, the defendant's honest belief that he or she had to participate in the crime to save his or her own life may be inconsistent with the mental elements of the charge such as intent to kill, malice, or premeditation and deliberation. (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.3(d), p. 625 [duress may eliminate the ability to deliberate or premeditate]; LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.11(c), pp. 274 [duress may negate malice]; see also People v. Beardslee (CA 1991) 53 C3d 68, 85-86 [279 CR 276]; State v. Faulkner (MD 1984) 483 A2d 759, 767 ["imperfect" defense of duress may not exculpate a defendant in an unlawful homicide case but may supply that mitigation necessary to lower the degree of guilt]; Wentworth v. State (MD 1975) 349 A2d 421, 428 [same]; cf. People v. Lee (CA 1994) 28 CA4th 1724, 1732-34 [34 CR2d 723]; People v. Valentine (CA 1946) 28 C2d 121, 136-142 [169 P2d 1].)

    See also FORECITE National™ 250.5.2 [Even If Defendant's Burden As To A Defense Is Not Met, Jury Must Consider Factual Basis For The Defense As To Proof Of Elements].

    See also FORECITE National™ 92.7.3.3 [Intentional Murder: Impact Of Provocation And Heat Of Passion Hot Blooded On Premeditation And Deliberation].

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

    In attempting to decide if the prosecution has proved beyond a reasonable doubt that the defendant [premeditated] [and] [deliberated], consider any evidence of duress which played a part in inducing the killing, but which was not sufficient to [reduce the homicide to manslaughter] [completely acquit the defendant].

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.73 [Evidence Of Provocation May Be Considered In Determining Degree Of Murder] (West, 6th Ed. 1996).]

    Consider any evidence showing the existence of threats, menaces or compulsion that played a part in inducing the killing for such bearing as it may have on the question of whether the murder was [of the first or second degree] [deliberate] [and] [premeditated] [intentional].

    If you have a reasonable doubt that the killing was [first degree murder] [deliberate and premeditated] [intentional], you must given the defendant the benefit of that doubt and find [him] [her] not guilty of first degree murder. Evidence of threats, menaces or compulsion may, by itself, raise a reasonable doubt in your mind that the killing was [first degree murder] [deliberate] [and] [premeditated] [intentional].

[Source: FORECITE National™.]

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

VOLUME 11 - CHAPTER 254

RATIONALE: Even in jurisdictions where duress is not available when the charge is murder, the jury should consider the evidence of duress in deciding whether the required mental elements were proven.

POINTS AND AUTHORITIES: Even if a duress defense is not permitted in a murder prosecution (see FORECITE National™ 254.1.4.1 [Duress/Coercion Applicability To Intentional Homicide]), the evidence of the defendant's belief in duress or coercion may be relevant to the mental elements of murder such as intent to kill, premeditation and deliberation. (See generally FORECITE National™ 254.1.6.2 [Imperfect (Partial) Duress/Coercion As Relevant To Intent To Kill, Malice, Premeditation And Deliberation].)

    Threats of harm may negate the mental states necessary for first degree murder, thereby reducing the crime to either second degree murder (see LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.3(d), p. 625 [duress may eliminate the ability to deliberate or premeditate]), or manslaughter (LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.11(c), pp. 274 [negation of malice by imperfect duress]). Hence, even if the claim of duress was not reasonable or otherwise unavailable as a complete defense, honest belief in duress may still negate a required mental element. (See e.g., People v. Beardslee (CA 1991) 53 C3d 68, 85-86 [279 CR 276] [implicit approval of instruction which related honest duress to malice and premeditation and deliberation]; State v. Faulkner (MD 1984) 483 A2d 759, 767 ["imperfect" defense of duress may not exculpate a defendant in an unlawful homicide case but may supply that mitigation necessary to lower the degree of guilt from murder to manslaughter]; but see U.S. v. LaFleur (9th Cir. 1991) 971 F2d 200, 206 [duress should not be used to mitigate intentional killing to manslaughter].)

    Hence, the defendant should have a right to an instruction allowing the jury to consider whether the mens rea of the charges is negated by the defense theory of honest duress.

    For example, if the defendant was forced to participate against his or her will, then the participation may have been without intent to kill, malice or premeditation, etc. Therefore, as in the cases where the defendant has the burden of proof as to an affirmative defense, the unavailability of failure to prove an affirmative defense should not preclude the jury from considering evidence relevant to that defense in deciding whether the prosecution has proven all elements of the charge beyond a reasonable doubt. (See FORECITE National™ 250.5.2 [Even If Defendant's Burden As To A Defense Is Not Met, Jury Must Consider Factual Basis For The Defense As To Proof Of Elements].) In other words, just because duress is not available as a complete defense to murder should not preclude the defendant from relying on a theory that the coercion or duress negated essential mental elements which the prosecution was required to prove. (See e.g., People v. Beardslee (CA 1991) 53 C3d 68, 85-86 [279 CR 276] [even though complete duress is not a defense to capital murder, California Supreme Court implicitly approved an instruction which related honest duress to the mental elements of murder]; Wentworth v. State (MD 1975) 349 A2d 421, 426-28; State v. Faulkner (MD 1984) 483 A2d 759, 767 [defense of duress may not exculpate a defendant in an unlawful homicide case but may supply that mitigation necessary to lower the degree of guilt from murder to manslaughter]; LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.11(c), p. 274 [duress may negate malice]; MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:17.5, comment [Homicide-First Degree Premeditated Murder, Second Degree Specific Intent Murder, And Voluntary Manslaughter (Duress)] (Micpel, 1999); but see LaFleur, supra.)

NOTE: This same analysis may apply in jurisdictions which do not allow complete duress to totally excuse murder or homicide. In such jurisdictions, duress may negate the degree of the homicide even though it doesn't excuse it. (See FORECITE National™ 254.1.6.2 [Imperfect (Partial) Duress/Coercion As Relevant To Intent To Kill, Malice, Premeditation And Deliberation].)

    Some jurisdictions recognize a special duress provision that applies where duress is raised as a defense to homicide. However, this defense only reduces murder to manslaughter. It is generally unavailable unless the defendant's response was a reasonable reaction to serious threats. (Robinson, Criminal Law Defenses (West, 1984) § 105(b) p. 511; see also State v. Faulkner (MD 1984) 483 A2d 759, 767, 769; but see Wright v. State (FL 1981) 402 So2d 493, 498-500 [duress not available to aider and abettor of intentional killing who must personally harbor premeditated intent to kill].)

Annotation, Coercion, Compulsion, Or Duress As Defense To Charge Of Robbery, Larceny, Or Related Crime, 1 ALR4th 481.

LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.11(c), p. 274.

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

    [Evidence has been presented] [It is a contention of the defendant] that the defendant's participation in the killing of ____________ was the result of defendant's honest belief that [his] [her] life was in danger and that [he] [she] would be killed unless [he] [she] participated in the killing of ____________.

    You must consider [this evidence] [the evidence relevant to this contention of the defendant] in deciding whether the following mental elements have been proven beyond a reasonable doubt:

    [Insert required mental elements of the murder charge.]

    If you have a reasonable doubt as to whether the defendant formed any of the above mental states, you must give the defendant the benefit of that doubt and find that such mental element was not been proven.

    The defendant's honest belief that [his] [her] life was in danger may, by itself, leave you with a reasonable doubt in your mind that defendant formed any of the above mental elements.

[Source: FORECITE National™.]

    Neither coercion nor duress is a complete defense in this case. However, you may consider evidence of threats and violence in the case on the question of whether the defendant acted knowingly and intentionally with respect to each crime charged in the indictment.

[Source: Adapted from U.S. v. Madoch (7th Cir. 1998) 149 F3d 596, 599.]

    You may consider evidence showing the existence of threats, menaces or compulsion that played a part in inducing the unlawful killing of a human being for such bearing as it may have on the question of whether the murder was of the first or second degree.

    If you have a reasonable doubt that the killing was first degree murder, you must given the defendant the benefit of that doubt and find [him] [her] not guilty of first degree murder. Evidence of threats, menaces or compulsion may, by itself, raise a reasonable doubt in your mind that the killing was first degree murder.

[Source: FORECITE National™.]