§ 23.01 General Principles

§ 23.01 General Principles¹

[A] Overview

"Duress" or "coercion" is a common law defense to criminal conduct. As it has been written about the defense:

Our society has a love-hate relationship with the . . . defense. Although "of venerable antiquity," the defense was frequently condemned as illegitimate, narrowly defined at common law, comparatively rarely invoked in criminal prosecutions, and not often successfully pleaded. [¶] . . . Nonetheless, our society also seems to love the plea or, at least, to be intrigued by it. Despite criticisms, our society has retained the defense, expanded it over the years, and paid close attention to the calls of those who would apply the defense in novel ways.²

[B] Elements of the Defense

The contours of the duress defense differ by jurisdiction. However, very generally speaking, a person will be acquitted of any offense except murder³ if the criminal act was committed under the following circumstances: (1) another person threatened to kill or grievously injure the actor or a third party unless she committed the offense; (2) the actor reasonably believed that the threat was genuine; (3) the threat was "present, imminent, and impending" at the time of the criminal act; (4) there was no reasonable escape from the threat except through compliance with the demands of the coercer; and (5) the actor was not at fault in exposing herself to the threat.⁴

As this description of the common law (and, sometimes, statutory) defense suggests, a person will not be acquitted unless she acts as a result of a very specific type of threat. First, the threat must come from a human being. For example, if D breaks into V's home because a rabid dog is threatening her in the street, or a severe lightning storm is underway, she might be able to claim the defense of necessity if she is charged with criminal trespass,⁵ but the defense of duress is inapplicable.

Second, the coercer must expressly (or impliedly⁶) threaten to cause death or serious bodily harm. Force that is likely to cause death or serious bodily harm is commonly termed "deadly force" in the criminal law;⁷ therefore, it is accurate to state, as a shorthand, that a person may not claim common law duress unless she is the victim of a threat of "deadly force." A lesser threat, such as a threat to cause minor injury, property damage, economic hardship, or to damage another person's reputation, is insufficient.⁸

Third, the deadly force threatened must be imminent, or as some courts put it, "present, imminent, and impending."⁹ The word "present" suggests that the threat must be operating on the actor's will at the time of the criminal act.¹⁰ The remaining requirement is that the threatened harm will occur immediately, unless the actor complies. Courts rarely explain this requirement, except to state that a threat of future harm is insufficient;¹¹ the harm must be likely to occur so quickly that there is no realistic way for the actor to escape the situation.¹² An example of a strict application of this rule is seen in a Minnesota case in which R, a police informant, agreed to testify against a suspected drug dealer. Prior to trial, however, armed assailants threatened him, and he was nearly run over on the street. As a consequence of his fear for his life and that of his family, R gave false testimony at the trial of the alleged narcotics dealer. r, prosecuted for perjury, claimed duress. The court held, however, that the facts did not support the claim, as he was not in fear of imminent harm at the moment he testified falsely at the trial. According to the court, however, a duress claim would have been available if D had reasonably feared being shot through a courthouse window.¹³ That said, courts on very infrequent occasion take a broader view of the immediacy element and hold that a threat may be characterized as "ongoing," such that "even when the threat precedes the [defendant's] illegal conduct by several days, the...