§ 23.04 DURESS AS A DEFENSE TO HOMICIDE

• Jurisdiction: United States

§ 23.04. Duress as a Defense to Homicide

[A] General Rule

The common law rule, stemming from antiquity, expressly adopted by statute in 18 states,³⁸ and reaffirmed by at least 14 other states by modern case law,³⁹ is that duress is not a defense to an intentional killing. A few states recognize an imperfect duress defense, which reduces the offense of the coerced actor to manslaughter.⁴⁰

There is a division of law regarding whether the duress defense may be raised in a felony-murder prosecution. Some states provide that a person coerced to commit a felony, during which she or an accomplice kills the victim, may raise the duress defense as to the felony and, therefore, is not guilty of felony-murder.⁴¹ Other states disallow the defense in all murder prosecutions, regardless of the defendant's mens rea regarding the death.⁴²

[B] Is the No-Defense Rule Sensible?

What are the arguments for the rule that duress does not excuse a murder? Why is a defendant entitled to claim duress if she complies with a gun-to-the-head demand that she steal a car, rob a bank, or sexually assault another person, but the defense is unavailable to her if she kills as the result of precisely the same threat? From a utilitarian perspective, it would seem that the traditional basis for the defense — that a threat of future punishment will not deter an actor confronted by an immediate deadly threat⁴³ — potentially applies to coerced murders as it does to coerced thieves, robbers, and assaulters.

Some scholars, however, defend the no-defense rule on utilitarian grounds. According to Jerome Hall, it is wrong to assume that "the drive of self-preservation is irresistible, that conduct in such situation is inexorably fixed for all human beings."⁴⁴ Lord Hailsham of the English House of Lords agrees:

Doubtless in actual practice many will succumb to temptation [and kill] . . . . But many will not . . . . I have known in my own lifetime of too many acts of heroism by ordinary human beings of no more than ordinary fortitude to [reject the common law position].⁴⁵

The California Supreme Court, as well, recently observed:

[W]hen confronted with an apparent kill-an-innocent-person-or-be-killed situation, a person can always choose to resist. As a practical matter, death will rarely, if ever, inevitably result from a choice not to kill. The law should require people to choose to resist rather than kill an innocent person.⁴⁶

But this argument sounds more like a reason not to justify a coerced...