Duress can be a legal defense to certain criminal charges in Colorado. The duress defense claims that you only committed the crime because you were forced to do it. The defense protects people who did not have a fair chance to abide by the law. It is defined by statute in Colorado at CRS 18-1-708.
- A gang kidnaps John’s family. They tell him to steal a car or his family will die. John steals the car under duress.
- A bank teller opens the safe because the bank robber is pointing a gun at her head.
Raising a defense of duress can avoid a conviction for a serious crime. A Colorado criminal defense attorney can help invoke it. In this article, an attorney explains the following points of the duress defense in Colorado:
- 1. How the duress defense works in Colorado
- 2. What kind of evidence can prove a duress defense?
- 3. When is the duress defense not an option?
1. How the duress defense works in Colorado
The legal defense of duress works by showing you only committed a crime under unlawful force or the threat of it. That threat of unlawful force has to be enough to keep you from resisting the threat. It can target you or someone else. The threat has to be both specific and imminent.
Defendants who raise the defense of duress in Colorado have to show there was:
- An imminent threat of death or harm,
- A well-grounded fear that the threat would be carried out, and
- No reasonable way to escape the threatened harm.1
The duress defense is also known as:
- Compulsion, and
1.1. How imminent does the threat of force have to be?
If the duress came from a threat, that threat has to involve force that is:
- Impending, and
Threats of force in the distant future are not enough for a duress defense. For example:
- Paul and Billy are prisoners. Paul threatens to murder Billy “if we ever get out of this mess.” The threat is not imminent.
- A prison inmate is told to hide cocaine. Other inmates threaten to assault him and hurt his wife and son if he refuses. The threat is imminent.3
A threat of force is not imminent if it can be avoided. Defendants are not under duress if they have time and the opportunity to go to the police or escape from the person making the threats.4
1.2. How specific does the threat have to be?
A threat of unlawful force has to be particular in order to support a duress defense.
Threats that are vague or do not say who will get hurt are not enough. The threats have to make it clear what will happen if the defendant does not commit the crime. They cannot let the defendant speculate or wonder what will happen.5
Example: A prison inmate is found carrying a concealed weapon. He claims he had to hide it to avoid being seen as a snitch and punished by other inmates. The speculated punishment is not specific enough.6
1.3. How serious does the unlawful force have to be?
The unlawful force or threat has to be serious enough to make a reasonable person in the same situation submit to it. The force or threat has to leave you with no reasonable alternative but to commit the crime.7
In theory, the threatened force has to be worse than the crime committed under duress.
Examples of threats that were enough for a duress defense include:
- A prisoner is abused in jail. He has an upcoming lecture at a high school. He is told to bring back drugs or not return at all. During the lecture, he escapes from custody.8
- A prison inmate is told to hide heroin. Other inmates threaten to hit him and hurt his wife and son if he refuses to hide the drugs.9
2. What kind of evidence can prove a duress defense?
The duress defense relies heavily on a defendant’s testimony. Any witnesses who heard the threats can also help prove a duress defense.
Statements about the threat and its context can show how serious the threat was. If these statements persuade the jury that a reasonable person would submit to it, the duress defense will work.
2.1. Who has to prove duress?
The defendant first has to present credible evidence of duress to raise the defense.
Once there is credible evidence of duress, the burden of proof shifts back to the prosecutor.
Once the burden of proof has shifted, the prosecutor has to prove there was no duress. The prosecutor has to prove that there was no duress beyond a reasonable doubt.10
3. When is the duress defense not an option?
There are two situations where the duress defense is not an option:
- You have been charged with a Class 1 felony, and
- You recklessly put yourself in the position where you were put under duress.
3.1. You have been accused of a Class 1 felony
Duress is not a defense to a Class 1 felony.
Class 1 felonies are the most severe type of crime in Colorado. They include offenses like:
- First-degree murder (CRS 18-3-102). This involves a deliberate and premeditated killing of someone else with malice aforethought.
- First-degree kidnapping (CRS 18-3-301). This crime involves the abduction of someone else in order to secure a ransom.
- Child abuse (CRS 18-6-401). This is only a Class 1 felony if the child dies.
Arguing that you only acted under duress in these cases is not a defense. The reason it is not a defense is because the crime you committed was so severe. The point of the duress defense is that you only committed a crime because you or someone else was being threatened with death or a serious injury. Class 1 felonies, however, involve an intentional killing or other serious injury. Duress is not a defense to Class 1 felonies because you have only made a different person the victim.
3.2. You put yourself in a position of duress
Duress is not a defense if you recklessly put yourself in the position where you were forced to commit a crime. CRS 18-1-708 forbids the duress defense where it was foreseeable for someone to be subjected to threats that would otherwise be duress.
Example: Don signs up to join the mafia. His first job is to break Joe’s kneecaps. Don gets told that if he fails, the mafia will break his kneecaps. Don cannot claim duress.
Call us for help…
For legal counsel and legal representation in Colorado, please feel free to contact us here at the Colorado Legal Defense Group.
- People v. Preciado-Flores, 66 P. 3d 155 (Colo. App. 2002).
- People v. Maes, 583 P. 2d 942 (Colo. App. 1978).
- See note 2.
- People v. Speer, 255 P. 3d 1115 (2011).
- People v. Trujillo, 586 P. 2d 235 (Colo. App. 1978).
- People v. Robertson, 543 P. 2d 533 (Colo. App. 1975).
- Bailey v. People, 630 P. 2d 1062 (1981).
- See note 5.
- See note 2.
- See Bailey v. People, 630 P. 2d 1062 (1981) and People v. Quintana, 665 P. 2d 605 (1983).