17.3 - A. Duress

• Jurisdiction: New York

A. Duress

The elements of the duress affirmative defense are (1) that the defendant was coerced into committing the crime (2) by the use or threatened imminent use of (3) unlawful physical force (4) upon him or upon a third person (5) which force a person of reasonable firmness in the defendant’s situation would have been unable to resist.²⁴⁹⁶ If no reasonable view of the evidence would support the affirmative defense of duress, a trial court can deny a request to charge the jury on the defense. For example, in People v. Staffieri,²⁴⁹⁷ the appellate court held that there was insufficient proof that threatened harm was imminent so that no duress charge was warranted. Note, however, that the statute precludes the defense of duress where the defendant either intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.²⁴⁹⁸ As with all affirmative defenses, the burden of proving duress is upon the defendant, and he must do so by a preponderance of the evidence.²⁴⁹⁹ It has been held proper under the U.S. Constitution to put this burden on the defendant.²⁵⁰⁰ Placing the burden of proof on the defendant “accords with the doctrine ‘where the facts with regard to an issue lie peculiarly in the knowledge of a party, that party has the burden of proving the issue.’”²⁵⁰¹

The test is a “reasonable man” test—that is, would a reasonable man in the same circumstances be able to resist the force or threatened force?²⁵⁰² Thus, factors that differentiate individuals such as size, strength, age, sex or health will be considered, so that the test would be whether an ordinary man of reasonable firmness with the same characteristics as the defendant would have been able to resist the force or threatened force. A prime consideration is the relationship of the quantum of coercion to the severity of the...