Duress is similar to self-defense in that you are reacting to imminent danger. They are both what is called an affirmative defense because you are not denying you broke the law: Instead, you are arguing that your unlawful activity is excused since you reasonably believed it would prevent immediate death or harm.1
Examples
Jill is stopped at a red light when suddenly the passenger door opens and a stranger slides inside. He points a gun at Jill’s head and tells her to drive to the bank so he can rob it. Jill complies in fear. If she is then charged with aiding and abetting the bank robber, she can likely get the case dropped by claiming duress.
John and his young daughter are next in line at a CVS when a man suddenly holds a knife to the daughter’s ribs and instructs John to hold up the cashier. Afraid for his daughter’s life, John complies. If John is then charged with robbery, he can likely get the case dismissed by claiming duress.
The legal defense of duress works only if you reasonably believed there was an immediate threat of death or serious bodily harm.
Elements of the duress defense
Duress is more than simply being scared. The following three elements must be true for your California criminal charges to be dismissed based on duress:
- You – or someone close to you – was threatened with immediate harm. You must fear that the threat will be carried out right away and not at some future time. Also, you do not have to be the one facing immediate death or bodily injury: The victim can be someone that you have a “direct connection” with such as a spouse or child.2
- Your belief was reasonable. You genuinely believed the threatened harm would be carried out. Furthermore, any reasonable person in your shoes would have believed it also. The threat can be made by words or actions, but it cannot be vague.3
- You could not reasonably escape. Your situation offered no realistic and doable option to escape the threat. In short, you had no way to safely retreat.
Here is an example where the duress defense would not work:
Max gets an anonymous phone call at home threatening to kill him if he does not steal from a jewelry store and leave the items at a storage locker. If Max complies with the demand, claiming duress would not get him off for theft. There is no reason to believe the threat of violence was immediate, and any reasonable person in Max’s situation would have called the police. There was a reasonable alternative to committing the theft.
Limitations and exceptions
There are two scenarios where claiming duress will not result in an acquittal or charge dismissal in California, even if you genuinely feared for your life:
- You put yourself in the threatening situation. For example if you choose to join a criminal gang, you cannot then claim duress if the gang leader holds a gun to you and threatens to shoot if you do not steal a car. By placing yourself in hazardous circumstances in the first place, you acted with free will – which negates the duress defense.
- You are charged with murder. Unless you acted in lawful self-defense, there is no justification under California law for murder. Even if you were threatened with death if you did not kill another person, claiming duress will not exonerate you since your life is no more valuable than anyone else’s.
Note that you can use duress to defend against felony murder charges, provided that you can show that you committed the underlying felony while under duress.
Burden of proof
If your criminal case goes to trial in California, prosecutors have to prove beyond a reasonable doubt that you are guilty. If you claim duress, you (or your criminal defense lawyers) do not then have the burden to prove it; instead, there only needs to be a reasonable doubt that you willingly or intentionally committed the crime.4
Depending on your case, helpful evidence to show you acted under duress may include:
- Video surveillance footage of you being threatened
- Eyewitness accounts of you being threatened
- Any relevant recorded communications (such as texts, voicemails, etc.)
- Any relevant forensic evidence and expert testimony
Duress v. necessity
Necessity is the defense where you try to avoid guilt by showing that you committed a criminal offense because it was necessary either:
- To prevent an even greater harm from occurring, or
- To avoid some harmful situation.
Maybe, for example, you committed hit and run to get a family member to the hospital to avoid a major medical emergency.
While the defenses of necessity and duress are related, they share two distinct differences:
- For the necessity defense, the threat of future harm does not need to be immediate. You can assert the defense even if you had time to think the harm over.
- With duress, you only need to raise a reasonable doubt as to the crime you are charged with. With necessity, you have to prove all of the elements of the defense by a preponderance of the evidence.5
Duress v. self-defense
Self-defense is an effective way to challenge a California criminal charge if you can show that:
- You reasonably believed that you were in imminent danger of physical harm, and
- The force you used was necessary to stop the danger.
Self-defense applies when you try to break free from being under duress. For example, if a person holds a gun at your head and threatens to shoot if you do not commit a crime, you are under duress. Though if you fight back, get hold of the gun and shoot that person, then you can claim self-defense.
If successful, the duress defense works to void or undo the business transaction that you engaged in.
Duress in civil cases
Duress is an acceptable defense in some California civil cases, usually those that involve contract laws. For it to work, you would have to show that you:
- Engaged in some business transaction, and
- Only did so because someone else performed an unlawful act that placed you in fear of economic hardship.6
If successful, the defense works to void or undo the business transaction that you engaged in.
When used in a civil case, the defense of duress is often referred to as “economic duress.”
Additional reading
For more in-depth information, our California criminal defense attorneys suggest you refer to these scholarly articles:
- Duress, Free Will and the Criminal Law – California Law Review article on how duress eliminates mens rea (criminal intent).
- Implied Fortitude: California’s Defense of Duress – Pepperdine Law Review on how duress operates in the jurisdiction of California state courts.
- The Criminal Defense of Duress: A Justification, Not an Excuse—And Why It Matters – Buffalo Criminal Law Review.
- Duress: A Philosophical Account of the Defense in Law – Arizona Law Review.
- Duress in the Criminal Law – Criminal Law Quarterly article on how claiming physical duress can excuse criminal acts.
Legal References:
- CALCRIM No. 3402. See, for example, U.S. v. Gonzalez, (2005) 407 F.3d 118. See also Dixon v. U.S. (United States Supreme Court, 2006) 548 US 1. State v. Baker, (2008) 197 P.3d 421. See also Head v. Gadsden Civil Service Bd., (1980) 389 So.2d 516. See, for example, U.S. v. Gonzalez, (2005) 407 F.3d 118.
- See, for example, U.S. v. Navarro, (2010) 608 F.3d 529. See also People v. Petznick, (2003) 114 Cal.App.4th 663. See note 1.
- See, for example, Ruffin v. State, (2008) 992 S.2d 1165. See note 1.
- People v. Graham, (1976) 57 Cal.App.3d 238.
- See, for example, People v. Dewberry (Cal.App. 1992) 8 Cal. App. 4th 1017.
- Black’s Law Dictionary, Sixth Edition – “Economic Duress.” See also Mancino v. Friedman, (1980) 429 N.E.2d 1181.