In criminal law, duress is an affirmative defense in which the defendant claims that he or she committed the wrongful act but only because he or she was pressured to do so in order to avoid some actual or perceived harm.
“He / she made me do it.” That familiar excuse is a valid defense in criminal law. The legal defense of “duress” means that you cannot be found guilty of a crime if someone else forced you to do it.
But the scope of the duress defense is rather limited. This defense applies to situations in which you committed a crime only because somebody threatened to kill you or a third person (or, possibly, inflict serious bodily harm on you or a third person) if you didn’t commit the crime.1 This has to have been a credible threat, so that you reasonably believed that your or someone else’s life was in immediate danger.2
So a more accurate statement of the duress defense might be, “He/she held a gun to my head and made me do it.”
In this article, our California criminal defense attorneys3 explain the legal defense of duress or threats by addressing the following:
If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.
It’s an established principle of criminal law that you can’t be criminally liable just for doing something wrong (in most cases, anyway). You also have to have had a culpable state of mind-or criminal intent-when you committed the bad act.4 The legal term for this state of mind is mens rea (pronounced “menz ray-uh”).5
California criminal law makes duress a defense because, if someone else forced you to commit the crime, you couldn’t have really intended to commit it.6 That is, you couldn’t have had the required criminal intent.
The California legislature has written this principle into the California Penal Code. Penal Code 26 PC states that:
“All persons are capable of committing crimes except those belonging to the following categories: . . . Persons . . . who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.”
But this reasoning also underscores why duress can be a difficult legal defense to assert. The legal defense of duress is based on the idea that you were under such extreme external pressure that you were deprived of your free will.8 The threat has to have been so severe and immediate that you had “no time . . . to formulate criminal intent.”9
Duress is never available as a defense to the California crime of murder.10 (Murder is defined as the killing of another person with malice aforethought-that is, an intent to kill, or a reckless disregard for human life.11)
However, there is one exception to this rule. Let’s say you are convicted of the California crime of murder based on the felony-murder rule. The California felony-murder rule makes a person guilty of murder if the killing took place while the killer was committing a dangerous felony, even if he or she didn’t intend to kill anyone.13
Jim burns down a house he believes to be empty (committing the dangerous felony of arson). In fact, someone is in the house and dies in the fire. Jim may be charged with murder under the felony-murder rule.
Unlike with ordinary murder, duress can be a defense to felony murder, if you can show that you committed the underlying felony under duress.14 So, for example:
Jim burns down a house he believes to be empty only because the owner of the house, who wants the insurance money, is nearby holding a gun to Jim’s wife’s head and threatening to pull the trigger if Jim doesn’t set the fire for him. The person in the house is killed. If Jim is found not guilty of arson because of the duress defense, he is not guilty of murder under the felony-murder rule either.
There are a number of separate things you must show in order to argue that you are not guilty because of duress.
The most basic requirement of the duress defense is that there has to have been some kind of “threat or menace” made by another person.15 Someone also needs to have made a “demand or request” that you commit the crime.16
In other words, someone needs to have said, “Do this, or else . . .” The “do this” part of that sentence is the demand or request. The “or else. . .” part is the threat or menace.
If someone says to you, “Rob this store, or I will kill you, your girlfriend, and her child,” then both a threat/menace and demand/request have been made.17
The demand or request does not always need to be that straightforward. It may be explicit, as it is in that example, but it can also be implied.18 For example:
Mark and his girlfriend Monique are accosted on the street by a mugger. The mugger holds a knife to Monique’s throat and says he will kill her if Mark doesn’t give him money. Mark explains that he has no money. The mugger then says to Mark that lots of rich people hang out on a nearby street and that those people probably have money. Mark goes over to that street and mugs someone there.
Mark may be able to argue that this was an
implied demand that he commit a mugging of his own, and that therefore he’s not guilty because of the duress defense.
But there does need to be some evidence that the person who threatened you also wanted you to commit the actual crime that you committed. Let’s say a prison inmate tries to escape from prison because of continuous threats of attack from other prisoners. When he is charged with escape from state prison, he cannot beat the charges with the duress defense, because the other prisoners did not ask or tell him to escape.19
You can’t argue the defense of duress because someone threatened to wreck your car or ruin your career. It applies only where there is a threat to kill either you or a third party.20
But what if someone threatens to break your legs if you don’t commit a crime? California law is not entirely clear on whether a threat of severe bodily harm can support a duress defense.21 But if the harm that’s threatened is severe enough that it would have a psychological impact that’s similar to the impact of a death threat — severe enough to overpower a person’s free will — then you probably can argue that duress applies.22
The key issue would probably be what kind of bodily harm was threatened. If someone threatened to punch you in the face or burn you with a cigarette, that might not do the trick. But the threat of a non-fatal shooting or stabbing could arguably create a level of duress that could compare to a death threat.
The duress defense only applies if you believed that your life was in immediate danger.23 In other words, there needs to have been a threat to kill or harm you or someone else immediately if you did not commit the crime. A threat to come back and kill you in a few weeks is not enough to create duress.24
Here are some examples:
- Miguel robs a jewelry store. He claims that a group he calls the Colombian mafia ordered him to do it and threatened to kill him and his family if he did not. He says that the members of the Colombian mafia are in New York, but he and his family are in California. The threat to him and his family was not immediate enough to support a defense of duress.25
- Stephen is an inmate in state prison. Another inmate named Gerald has previously threatened him with a hammer during metal shop class. Stephen has also been warned that Gerald plans to attack him in shop class with a makeshift weapon at some point in the future.So Stephen decides to act first. During shop class, he strikes Gerald in the head from behind with a hammer.Stephen cannot argue that he was innocent because of duress. Even though he had reason to believe Gerald posed a threat to him in the future, that threat was not immediate at the time when he attacked Gerald.26
This requirement may seem a bit unfair. If you have good reason to believe that you or somebody else will be killed if you don’t commit a crime, and there’s nothing you can do to prevent the killing (like go to the police), then should it really matter whether you or they will be killed immediately as opposed to a couple of days later?
Los Angeles criminal defense attorney Neil Shouse27 explains the requirement this way:
“The requirement that a threat be immediate is rooted in the theory behind the legal defense of duress, which is that a person can’t be guilty of a crime if his or her free will was overcome and so he or she couldn’t form criminal intent. Let’s say someone says they’ll come back and kill you in 48 hours if you don’t commit a robbery. In theory, you have time to think it over and consider what your other options are before you go out and commit the robbery. So in some sense you did have time to form the
intent to commit the crime.”
Fortunately, there is another legal defense available if you were dealing with a non-immediate threat. The legal defense of necessity, which we discuss later in this article, may apply in these cases.28
The duress defense only applies if your belief that your or someone else’s life was in danger was reasonable.29 In deciding whether your belief in a threat was reasonable, courts have to consider all the circumstances that you were aware of at the time and what a reasonable person in your position would have believed.30
Here are some examples of the reasonability requirement:
- Michelle, a woman who weighs one hundred pounds, tells her friend Tom, a man who weighs two hundred fifty pounds, that she will beat him to death if he doesn’t carry out a drug transaction for her. Michelle has no weapons. Tom probably cannot claim the defense of duress because it was not reasonable for him to believe Michelle’s threat.
- Hector is in prison serving a life sentence. He asks his wife Sophia to help smuggle a weapon into prison for him. He says that he will kill her if she doesn’t say yes. It is probably not reasonable for Sophia to believe that he can carry out this threat from prison.
All of the elements we just discussed (menace or threat, request or demand, immediacy of threat, reasonable belief) are required for a duress defense. However, you don’t have to conclusively prove any of those things. You only need to introduce a “reasonable doubt” that all of those elements might have been present.31
This makes sense because, as we explained above, the legal defense of duress is based on the theory that you couldn’t have formed criminal intent if you were under duress.32 Prosecutors have to prove all elements of the crime, including criminal intent, beyond a reasonable doubt. So all a defendant needs to do is create a reasonable doubt in jurors’ minds that duress might have existed. 33
Let’s say you are a defendant telling a story that, if true, would support a duress defense. You have one witness who testifies that your story is true. The prosecution has another witness who testifies that it is not true. Both witnesses seem fairly reliable. But you will win on the duress argument, because your witness is enough to create reasonable doubt about whether the prosecution’s story is true.
In many criminal cases, there will be evidence that the defendant committed a crime under pressure from someone else but the facts do not support the complete duress defense. For example, maybe you committed a crime because someone else threatened you, but the threat of harm wasn’t immediate.
The duress defense won’t be able to protect you from all criminal liability in that sort of case. But evidence of the threat can still be useful, because the jury can consider the effect of the threat on your mental state.34 If the crime of which you are accused requires a particular mental state-like malice for murder- then evidence that you were threatened into committing the crime could mitigate the charge of which you are found guilty.35
The legal defense of necessity is related to but distinct from the legal defense of duress.36 You can escape liability through the necessity defense if you can prove the following:
- You committed a crime in an emergency, in order to prevent significant bodily harm or evil to yourself or someone else;
- You had no adequate legal alternative;
- Your actions did not create a greater danger than the one avoided;
- You reasonably believed that your actions were necessary to prevent the threatened harm or evil;
- A reasonable person would also have believed this to be true; AND
- You did not substantially contribute to creating the emergency.37
The major differences between duress and necessity are:
- A successful duress defense means that you lacked the criminal intent necessary to be guilty of a crime. But the necessity defense isn’t based on the theory that you lacked criminal intent. Instead, it represents a public policy decision not to punish someone for committing a crime that ended up preventing a greater harm from occurring.38
- For the necessity defense, the threatened harm doesn’t need to be immediate. You can assert the necessity defense even if you had time to think it over.39
- With the duress defense, 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 (which means that the jury needs to feel that there is at least a fifty percent (50%) chance that his or her story is true).40
The same sets of facts could support either the duress or the necessity defense, or both. 41 An experienced California criminal defense attorney can help you understand the subtle differences between these two defenses and put forth the one that is most likely to be effective in your circumstances.
California self-defense law provides another California legal defense that is related to but distinct from the legal defense of duress.
Self-defense is different from duress in that it generally applies if you use force to harm someone whom you believe would otherwise have harmed you or a third person.42 Here is a pair of examples that illustrates the difference between the legal defenses of self-defense and duress:
- Tony brandishes a knife at Jason and threatens to kill him if Jason doesn’t help him commit a bank robbery. Jason tackles Tony, wrests the knife away from him, and stabs him with it. Tony later dies of his injuries. Jason may be innocent because he acted in self-defense.
- Tony brandishes a knife at Jason and threatens to kill him if Jason doesn’t help him commit a bank robbery. Jason accompanies Tony to the bank and helps him commit the robbery. Jason may be innocent because he acted under duress.
In order to successfully assert self-defense, you need to show:
- that you were responding to an imminent danger or threat,
- that you reasonably believed you would be harmed if you did not respond, and
- that your response to the danger or threat was reasonable.43
Contact us for help…
If you or a loved one is in need of help using duress or threats as a legal defense and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in the office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, we have law offices located in Reno and Las Vegas. For information relating to Nevada’s legal defenses, we invite you to contact a Nevada criminal defense attorney at one of our local Nevada law offices.44
1 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 3402 – Duress or threats. (“The defendant acted under duress if, because of threat or menace, (he/she) believed that (his/her/ [or] someone else’s) life would be in immediate danger if (he/she) refused a demand or request to commit the crime.”)
2 See same.
3 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.
4 See, e.g., Penal Code 20 PC – Crime; unity of act and intent, or criminal negligence. (“TO CONSTITUTE CRIME THERE MUST BE UNITY OF ACT AND INTENT. In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.”)
5 Black’s Law Dictionary (9th ed. 2009), mens rea. (“Mens rea. . . . The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness . . . .”)
6 People v. Tewksbury (1976), 15 Cal.3d 953, 964 footnote 9. (“Among such defensive assertions could be an accused’s contention that the crime was committed under duress or compulsion. If in so asserting the accused contends that he is not guilty of the crime charged because his free will was so overcome he did not act in the exercise thereof, he necessarily attacks the prosecution’s allegation that he acted with criminal intent.”) (citations omitted)
7 Penal Code 26 PC.
8 People v. Heath, (1989) 207 Cal.App.3d 892, 900. (“Thus, duress negates an element of the crime charged — the intent or capacity to commit the crime — and the defendant need raise only a reasonable doubt that he acted in the exercise of his free will.”)
10 People v. Anderson, (2002) 28 Cal.4th 767, 770. (“We conclude that, as in Blackstone’s England, so today in California: fear for one’s own life does not justify killing an innocent person. Duress is not a defense to murder.”)
11 Penal Code 187 PC – Murder defined. (“(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.”)
12 People v. Anderson, (2002) 28 Cal.4th 767, 770. (“We also conclude that duress cannot reduce murder to manslaughter.”)
13 See, e.g., People v. Cavitt, (2004) 33 Cal.4th 187, 197.
14 People v. Anderson, (2002) 28 Cal.4th 767, 784. (“[D]uress can, in effect, provide a defense to murder on a felony-murder theory by negating the underlying felony.”)
15 CALCRIM 3402. (“The defendant is not guilty of <insert crime[s] > if (he/she) acted under duress. The defendant acted under duress if, because of threat or menace, (he/she) believed that (his/her/ [or] someone else’s) life would be in immediate danger if (he/she) refused a demand or request to commit the crime[s]. The demand or request may have been express or implied.”)
16 See same.
17 See People v. Graham, (1976) 57 Cal.App.3d 238, 239 (in which this scenario was the basis of a duress defense).
18 CALCRIM 3402. (“The demand or request may have been express or implied.”)
19 People v. Steele, (1988) 206 Cal.App.3d 703, 707. (“In the present case there is absolutely no evidence the alleged threats were accompanied by an implied demand that Steele escape. To the contrary, Steele’s own testimony indicates the threats were made because of his status as a sex offender. There is no indication that those making the threats requested, demanded or desired that Steele escape.”)
20 CALCRIM 3402. (“The defendant acted under duress if . . . (he/she) believed that (his/her/ [or] someone else’s) life would be in immediate danger . . . .”)
21 See People v. Otis, (1959) 124 Cal.App.2d 119, 123. (“We shall point out that while one line of cases holds fear of bodily harm sufficient to excuse the commission of the offense, another parallel line requires, for that defense, fear that the person’s life would be endangered.”)
See also People v. Subielski, (1985) 169 Cal.App.3d 563, 567 (“fear of some unspecified injury” will not support the defense of duress).
22 See People v. Otis, (1959) 124 Cal.App.2d 119, 124. (“While these last two cases make no fine distinction between the two types of fear [of death and of bodily harm], precision in separating them has become somewhat unrealistic in the light of recent psychological research.”)
See also CALCRIM 3402, Bench Notes (Instructional Duty). (“Fear of great bodily harm can also raise the defense of duress.”)
23 CALCRIM 3402. (“The defendant acted under duress if, because of threat or menace, (he/she) believed that (his/her/ [or] someone else’s) life would be in immediate danger if (he/she) refused a demand or request to commit the crime[s].”)
24 People v. McKinney, (1986) 187 Cal.App.3d 583, 587. (“The courts have long recognized that duress is only an effective defense when the actor responds to an immediate danger; a fear of future harm to one’s life does not relieve one of responsibility for the crimes he commits.”) (internal quotation marks and citations omitted)
25 People v. Bacigalupo, (1991) 1 Cal. 4th 103, 123-25.
26 People v. McKinney, (1986) 187 Cal.App.3d 583, 585, 587. (“Here, again, defendant’s offer of proof failed to show that defendant struck Bean because of his fear of imminent harm. The facts are quite to the contrary. Although defendant offered to prove that Bean had a shank hidden in the metal shop classroom, defendant struck Bean from behind while Bean was busy receiving individual instruction. Bean was not in a position to threaten defendant at the time. The other inmates who had threatened defendant were not present in the shop class at the time. In short, defendant’s offer of proof established at most a threat of future harm if he failed to confront Bean.”)
27 Los Angeles criminal defense lawyer Neil Shouse is a former Los Angeles County Deputy District Attorney with many years of criminal trial experience on cases ranging from DUIs and drug charges to complex, high profile murders. Mr. Shouse represents clients at a number of locations of the California courts, including the Pasadena courthouse, the Burbank courthouse, the Glendale courthouse, the Alhambra courthouse, and the Clara Shortridge Foltz Criminal Justice Center in downtown Los Angeles.
28 CALCRIM 3402, Related Issues (Necessity Distinguished). (“With necessity, the threatened harm is in the immediate future, thereby permitting a defendant to balance alternative courses of conduct. . . . The duress defense, on the other hand, does negate an element of the crime. The defendant does not have the time to form the criminal intent because of the immediacy of the threatened harm.”)
29 CALCRIM 3402. (“The defendant’s belief that (his/her/ [or] someone else’s) life was in immediate danger must have been reasonable. When deciding whether the defendant’s belief was reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in the same position as the defendant would have believed.”)
30 See same.
31 People v. Graham, (1976) 57 Cal.App.3d 238, 240. (“The trial court erred in instructing the jury the burden of showing duress by a preponderance of the evidence was on Graham. Rather, Graham had only to raise a reasonable doubt he had acted in the exercise of his free will.”)
32 People v. Heath, (1989) 207 Cal.App.3d 892, 900. (“Thus, duress negates an element of the crime charged — the intent or capacity to commit the crime — and the defendant need raise only a reasonable doubt that he acted in the exercise of his free will.”)
33 See same.
34 People v. Maury, (2003) 30 Cal.4th 342, 421-22. (“Although duress cannot reduce murder to manslaughter by negating malice . . ., the court nevertheless gave instructions that authorized the jury to consider the effect of threats on the mental states requisite to murder and manslaughter. The jury was told that to establish that a killing is murder, the prosecution had the burden of proving beyond a reasonable doubt that the “act which caused the death was not done … in a killing punishable by death, in the honest belief in the necessity to protect oneself against imminent peril to life or great bodily injury, whether or not that belief was reasonable or unreasonable.” It was further told that “there is no malice aforethought in a killing punishable by death if the killing occurred in the honest belief in the necessity to protect oneself against imminent peril to life or great bodily injury, whether or not that belief was reasonable or unreasonable” and that, in such instance, the offense is voluntary or involuntary manslaughter. . . . Although defendant was deprived of the complete defense of duress, he was permitted to use the same underlying facts to mitigate the crime.”)
35 See same. See also CALCRIM 3402, Related Issues (Mental State or Intent). (“Evidence of duress may be relevant to determining whether the defendant acted with the required mental state, even if insufficient to constitute a complete defense.”)
36 People v. Heath, (1989) 207 Cal.App.3d 892, 900-901 (comparing the duress and necessity defenses).
37 CALCRIM 3403 – Necessity. (“The defendant is not guilty of <insert crime[s] > if (he/ she) acted because of legal necessity. In order to establish this defense, the defendant must prove that: 1. (he/she) acted in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else); 2. (he/she) had no adequate legal alternative; 3. The defendant’s acts did not create a greater danger than the one avoided; 4. When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil; 5. A reasonable person would also have believed that the act was necessary under