When facing a criminal charge in California, the “duress defense” is where:
- 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.
Examples
- 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 in California, you typically have to establish:
- you were threatened with harm if you refused to commit an unlawful act, and
- you reasonably believed that your life would be in immediate danger if you did not comply.1
Note that duress is not available as a defense for a murder charge. Moreover, it is typically not available where you are somehow responsible for placing yourself in a dangerous situation.
Note, too, that there are two defenses to criminal charges related to duress. These are:
- necessity, and
- self-defense.
Another word for duress is coercion.
Our California criminal defense attorneys will explain the following in this article:
- 1. What is the legal defense of duress?
- 2. Are there limitations?
- 3. Is the defense available in civil cases?
- 4. Related defenses
- Additional readings
1. What is the legal defense of duress?
In California 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 in California:
- 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.3
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.
1.2. Fear
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. Burden of proof
You bear the burden of proving all of the elements of the duress defense.6
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?
There are limitations to the duress defense. 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.
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. Responsibility may occur no matter if you placed yourself in a dangerous situation intentionally, negligently, or through some reckless act.
3. Is the defense available in civil cases?
Duress is an acceptable defense in some California 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.7
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. Related defenses
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.
4.2. Self-defense
Self-defense is an acceptable 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 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.
Additional reading
For more in-depth information, refer to these scholarly articles:
- Duress, Free Will and the Criminal Law – California Law Review.
- Implied Fortitude: California’s Defense of Duress – Pepperdine Law Review.
- 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.
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 note 1.
- See, for example, U.S. v. Gonzalez, (2005) 407 F.3d 118. See note 1.
- 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.
- Black’s Law Dictionary, Sixth Edition – “Economic Duress.” See also Mancino v. Friedman, (1980) 429 N.E.2d 1181.