When is duress a defense to a crime in Nevada?

Posted by Neil Shouse | May 23, 2018 | 0 Comments

Duress is a potential defense to charges of any Nevada crime except first-degree murder. Defendants may raise a duress defense if they committed a crime because they reasonably believed they would be killed or severely injured if they refused.[1]

A classic example of duress is a thief holding up a random pedestrian with a gun and demanding that the person shoplift or steal from an ATM. The pedestrian being held up cannot be held criminally liable for then shoplifting or stealing from the ATM because he reasonably believed the thief would shoot him if he did not comply.

Sometimes, "duress" also goes by the name coercion.

1. How to raise a duress defense in Nevada

Duress is an affirmative offense. This means that the defendant has the initial burden to raise the claim that he/she was put under duress. Then the burden shifts to the prosecution to prove that duress does not exonerate the defendant's criminal liability.

Examples of other affirmative defenses are insanity and self-defense.

2. Can a defendant claim duress if the threat was not immediate?

Nevada state law does not specify. But federal law indicates that the threat of death or bodily harm to the defendant should be immediate or imminent in order for the duress defense to apply. And it is foreseeable that Nevada juries would be less sympathetic to defendants who had a reasonable opportunity to escape the threat but chose not to.[2]

3. What qualifies as a putting someone under duress?

Typical examples include holding a gun, knife, or other deadly weapon to someone. But even "fighting words" may qualify as duress in certain circumstances. Whether a certain situation rises to the level of duress is a question of fact for the jury to decide.

Note that the duress defense does not apply when the defendant put him/herself in the dangerous situation to begin with. For instance if a man and women agree to rob a bank, and while holding up the teller the man gets cold feet, the man cannot claim duress if the woman threatens to hurt him if he does not finish robbing the bank.

Note that duress is also unavailable as a defense to people who have been brainwashed -- such as in a cult -- unless they are facing death or grave injury.

4. Why is duress not a defense to first-degree murder?

As a public policy, the law does not prioritize one person's life above another. While the law may excuse people under duress from committing such serious crimes as arson, grand larceny, or even assault with a deadly weapon, the law is not meant to excuse the killing an innocent person just because the killer's own life was in jeopardy.

Under Nevada self-defense laws, the only person that a victim under duress may kill is the person threatening him/her. And for self-defense to be a valid defense, the threat to the victim's life must be immediate.[3]

Learn more about our Nevada criminal defense attorneys.

Legal References:

  1. NRS 194.010 ("Persons, unless the crime is punishable with death, who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to believe, and did believe, their lives would be endangered if they refused, or that they would suffer great bodily harm.").
  2. U.S. v. Alzate, 47 F.3d 1103 (11th Cir. 1995);  U.S. v. Gonzalez, 407 F.3d 118 (2nd Cir. 2005); Browning v. State, 120 Nev. 347, 91 P.3d 39 (2004)("The air conditioning and the officer's alleged comment do not constitute cause for such a belief. Moreover, this court has held that duress is not applicable to an [prison] escape charge.").
  3. NRS 200.200 ("If a person kills another in self-defense, it must appear that: 1. The danger was so urgent and pressing that, in order to save the person's own life, or to prevent the person from receiving great bodily harm, the killing of the other was absolutely necessary; and 2. The person killed was the assailant, or that the slayer had really, and in good faith, endeavored to decline any further struggle before the mortal blow was given.").

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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