When facing a criminal charge, duress is a defense in which
- you admit that you committed a criminal act, but
- argue that you had no choice but to do so because of an immediate threat of death or serious harm.
- A thief holds a knife to your throat and threatens your life if you do not shoplift for them.
- A fugitive carjacks you, holds a rope around your neck, and threatens to strangle you if you do not help them flee the state.
- A robber holds you up with a gun and threatens to shoot if you do not help them rob a bank.
To successfully assert a duress defense, you typically have to establish three facts:
- a person made an immediate threat of death or serious bodily injury against you,
- you had a reasonable fear that the person, or some third party, would carry out the threat, and
- you 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 criminal offense charged. For example, most states do not allow it to challenge a murder charge. Moreover, it is typically not available where you were somehow responsible for placing yourself in a dangerous situation.
Some jurisdictions refer to this defense as coercion.
Note, too, that there are two defenses to criminal charges related to duress. These are:
Our California criminal defense attorneys will explain the following in this article:
- 1. What is the legal defense of duress?
- 2. Are there limitations to 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 you assert that you committed an illegal act because another party threatened or coerced you 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.
You often have to prove the following elements of the defense to succeed in showing duress:
- a person issued an immediate threat of death or serious bodily harm against you,
- you had a reasonable and justifiable fear that the person, or some third person, would carry out the threat, and
- you had no reasonable opportunity or reasonable way out to avoid the threatened harm, but for committing the unlawful act.3
Note that you bear the burden of proving that you 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, an immediate threat can be expressed either directly or indirectly, and the expression can take place via either words or actions.
The duress defense will only work if you reasonably feared that someone would carry out a threat.
You 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 you had no reasonable way out of the threatened harm.
This is to say that duress usually will not work if you had some reasonable alternative to committing the criminal act.6
1.4. Burden of proof
Note that you bear the burden of proving all of the elements of the duress defense.
Though you do not have to prove the elements with 100 percent certainty. You only have to introduce a “reasonable doubt” that all of the elements might have been present.7
Keep in mind that, in most cases, you are not guilty of a crime for simply doing something wrong. You typically must also have criminal intent, or culpable state of mind/mens rea, when you committed the unlawful act.
Duress works as a defense because it shows that someone else forced you to commit a crime, and you 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 you only have to create a reasonable doubt in jurors’ minds that duress might have existed.
2. Are there limitations to the defense?
There are limitations to the duress defense.
Some jurisdictions say that the defense is not available for certain crimes. For example, you typically cannot raise the defense to challenge a murder charge.
Further, the defense is usually not allowed if you were somehow responsible for placing yourself 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, 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.8
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.”
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 you try to avoid guilt by showing that you committed a crime 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 necessity and duress are related, the defenses share two distinct differences. These are:
- for the necessity defense, the threatened 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 about the elements of the defense. Though you have 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 you can show that:
- you reasonably believed that you were in imminent danger of physical harm, and
- the force was necessary to stop the danger.
Keep in mind, though, that with this defense you 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 you try to break free from the duress. For example, a person may hold a gun at your head and then threaten to shoot if you do not commit a crime. Here, a duress defense would apply.
However, if you somehow struggle with the person issuing the threat, get hold of the gun, and shoot that person, then self-defense would apply.
5. What is the law in California?
California recognizes the duress defense.
To successfully use the defense, you must demonstrate that:
- someone made a threat that they would harm you if you did not commit an unlawful act, and
- you believed that your life would be in immediate danger if you refused to commit the unlawful act.9
Note that your belief that your 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, you can use duress to defend against a charge of felony murder, provided that you can show that you committed an underlying felony while under duress.
For additional help…
For additional guidance or to discuss your case with a DUI/criminal defense lawyer, we invite you to contact our law firm at the Shouse Law Group. Our attorneys provide both consultations and legal advice you can trust.
- 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, for example, Ruffin v. State, (2008) 992 S.2d 1165.
- See, for example, U.S. v. Harris, (1997) 104 F.3d 1465.
- People v. Graham, (1976) 57 Cal.App.3d 238.
- Black’s Law Dictionary, Sixth Edition – “Economic Duress.” See also Mancino v. Friedman, (1980) 429 N.E.2d 1181.
- CALCRIM No. 3402 – Duress or Threats. Judicial Council of California Criminal Jury Instructions (2020 edition)
- See same.
- See same.