In most jurisdictions, duress is an affirmative defense in which defendants claim that they committed a criminal act but had to do so in order to avoid an immediate threat of death or serious harm. An example is when a person holds a knife to an accused’s throat and threatens the defendant’s life if he/she doesn’t commit a crime. Some jurisdictions refer to this defense as “coercion.”
To successfully show duress, a defendant typically has to prove that:
- a person made an immediate threat of death or serious bodily harm against the defendant,
- the accused had a reasonable fear that the person, or some third party, would carry out the threat, and
- the accused had no reasonable way out to avoid the threatened harm but for committing the unlawful act.1
Note that duress is not available as a defense for every crime charged. For example, most states do not allow it to challenge a murder charge. Moreover, it is typically not available where an accused was somehow responsible for placing him or herself in a dangerous situation.
Note, too, that there are two defenses related to duress. These are:
Our California criminal defense attorneys will highlight the following in this article:
- 1. What is the legal defense of duress?
- 2. Are there limitations with the defense?
- 3. Is the defense available in civil cases?
- 4. Are there related defenses?
- 5. What is the law in California?
1. What is the legal defense of duress?
In criminal law, duress is a legal defense where defendants assert that they committed an illegal act because another party threatened or coerced them into doing so.2
Example: John is sitting behind the wheel of his vehicle, stopped at a red light outside of a bank. All of a sudden, his passenger door opens and a robber slides inside. The robber points a gun at John’s head and tells him to “move it.” John drives off in fear.
Here, John technically commits the crime of aiding and abetting. However, if charged with the offense, he can likely get it dropped by saying that he acted under duress.
Defendants often have to prove the following elements of the defense to succeed with showing duress:
- a person issued an immediate threat of death or serious bodily harm against the defendant,
- the accused had a reasonable and justifiable fear that the person, or some third person, would carry out the threat, and
- the accused had no reasonable opportunity or reasonable way out to avoid the threatened harm, but for committing the unlawful act.3
As to these elements, people often have questions on the meaning of:
- “immediate threat,”
- “reasonable fear,” and
- “reasonable way out.”
Note that the defendant bears the burden of proving that he acted under duress.
1.1. Immediate threat
For purposes of this defense, a threat has to relate to some immediate danger. The threat also has to be real and present. The defense will not work with either a:
- threat of future harm, or
- past threat of violence.4
Further, a person can express an immediate threat either directly or indirectly, and the expression can take place via either words or actions.
The duress defense will only work if a defendant reasonably feared that someone would carry out a threat.
A defendant can show this by demonstrating that a reasonable person would have had the same fear under the circumstances.
A judge or jury typically determines reasonableness by analyzing all of the facts of a case.5
1.3. No reasonable way out
Most jurisdictions say that this defense is not available unless the defendant had no reasonable way out of the threatened harm.
This is to say that duress usually will not work if an accused had some reasonable alternative to committing the criminal act.6
1.4. Burden of proof
Note that the defendant bears the burden of proving all of the elements of the duress defense.
A defendant, though, does not have to prove the elements to a 100 percent certainty. An accused only has to introduce a “reasonable doubt” that all of the elements might have been present.7
Keep in mind that, in most cases, people are not guilty of a crime for simply doing something wrong. They typically must also have a criminal intent, or culpable state of mind/mens rea, when they committed the unlawful act.
Duress works as a defense because it shows that someone else forced the defendant to commit a crime, and the accused did not act with any type of intent to break the law.
Since a prosecutor has to prove all the elements of a crime, including criminal intent, beyond a reasonable doubt, then a defendant only has to create a reasonable doubt in jurors’ minds that duress might have existed.
2. Are there limitations with the defense?
There are limitations with the duress defense.
Some jurisdictions say that the defense is not available for certain crimes. For example, defendants typically cannot raise the defense to challenge a murder charge.
Further, the defense is usually not allowed if defendants were somehow responsible for placing themselves in a dangerous situation where a threat of death or harm may arise.
3. Is the defense available in civil cases?
Duress is an acceptable defense in some civil cases, usually those that involve contract laws. To work, a party would have to show that he/she:
- engaged in some business transaction, and
- only did so because someone else performed an unlawful act that placed the party in fear of economic hardship.8
If successful, the defense works to void or undo the business transaction that the party engaged in.
When used in a civil case, the defense of duress is often referred to as “economic duress.”
4. Are there related defenses?
There are two defenses related to duress. These are:
- necessity, and
4.1. Defense of necessity
Necessity is the defense where an accused tries to avoid guilt by showing that he/she committed a crime because it was necessary to either:
- prevent an even greater harm, or
- avoid some harmful situation.
Maybe, for example, an accused committed hit and run to get a family member to the hospital to avoid a major medical emergency.
While necessity and duress are related, the defenses share two distinct differences. These are:
- for the necessity defense, the threatened harm doesn’t need to be immediate. An accused can assert the defense even if he/she had time to think the harm over.
- with duress, the defendant only needs to raise a reasonable doubt about the elements of the defense. But the defendant has to prove all of the elements of the necessity defense by a preponderance of the evidence.
Self-defense is an acceptable way to challenge a crime if defendants can show that:
- they reasonably believed that they were in imminent danger of physical harm, and
- force was necessary to stop the danger.
Keep in mind, though, that with this defense an accused must have only used the degree of force that was reasonably necessary under the circumstances.
Self-defense is similar to duress because it often applies if a person tries to break free from the duress. For example, a person may hold a gun at a party’s head and then threaten to shoot if the party does not commit a crime. Here, a duress defense would apply.
However, if the party somehow struggles with the person issuing the threat, gets hold of the gun, and shoots that person, then self-defense would apply.
5. What is the law in California?
California recognizes the duress defense.
To successfully use the defense, accused people must demonstrate that:
- someone made a threat if they did not commit an unlawful act, and
- they believed that their life would be in immediate danger if they refused to commit the unlawful act.9
Note that a defendant’s belief that his/her life was in immediate danger must have been reasonable.10
Further, a threat of future harm is not sufficient to trigger this defense. A danger to life must have been immediate.11
Under California law, duress is never an acceptable defense for a charge of murder.
However, a defendant can use duress to defend against a charge of felony murder, provided that the accused can show that he/she committed an underlying felony while under duress.
For additional help…
For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact our law firm at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.
- See, for example, U.S. v. Gonzalez, 407 F.3d 118 (2005).
- State v. Baker, 197 P.3d 421 (2008). See also Head v. Gadsden Civil Service Bd., 389 So.2d 516 (1980).
- See, for example, U.S. v. Gonzalez, 407 F.3d 118 (2005).
- See, for example, U.S. v. Navarro, 608 F.3d 529 (2010). See also People v. Petznick, 114 Cal.App.4th 663 (2003).
- See, for example, Ruffin v. State, 992 S.2d 1165 (2008).
- See, for example, U.S. v. Harris, 104 F.3d 1465 (1997).
- People v. Graham, (1976) 57 Cal.App.3d 238.
- Black’s Law Dictionary, Sixth Edition – “Economic Duress.” See also Mancino v. Friedman, 429 N.E.2d 1181 (1980).
- CALCRIM No. 3402 – Duress or Threats. Judicial Council of California Criminal Jury Instructions (2020 edition)
- See same.
- See same.