L. Duress and Necessity

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

L. Duress and Necessity

The defenses of duress and necessity share much common ground, and it is sometimes difficult to determine which is appropriate in a given situation. The leading South Carolina case on this issue elected to treat them as the same. State v. Worley, 265 S.C. 551, 553, 220 S.E.2d 242 (1975). The basic rationale of both defenses is that if the only means of avoiding a greater harm is for the actor to engage in conduct resulting in a lesser harm, then he should not be held criminally accountable, unless, according to the traditional view of the defense of duress, his action involves the deliberate taking of innocent human life. While local cases of the defense of duress and necessity per se are comparatively few, their basic rationale is apparent in the more common situation of self-defense, considered previously in this chapter.

The basic distinction between the defenses of duress and necessity involves the nature of the agency threatening the greater harm that the actor sought to avoid. Traditionally, the defense of duress has involved the threat of imminent death or serious bodily harm to the actor, or perhaps to a family member, friend or even stranger, made by another person, which can be avoided only by the actor's engaging in the conduct demanded by the other person. E.g., Burns v. State, 15 S.E. 748 (Ga. 1892). See 40 A.L.R.2d 908 (1955).

The South Carolina Supreme Court emphasized that the defense of duress is not even raised unless there is evidence that "the degree of coercion [was] present, imminent, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done." State v. Robinson, 294 S.C. 120, 121, 363 S.E.2d 104, 104 (1987). As with any other defense, there is no right to have the jury instructed on duress unless there is evidence in the case supporting such a change. Id.; State v. Gibbs, 267 S.C. 365, 228 S.E.2d 104 (1976); State v. Holliday, 333 S.C. 585, 510 S.E.2d 436 (1998).

At common law, the defense of duress is not available to one who intentionally kills an innocent third party. LaFave, 518-26 (5th ed. 2010). Whether the defense would be available to one with accomplice, as opposed to principal, liability for murder was raised but not resolved in Robinson. The issue was not properly presented because of the insufficient evidence of duress. The issue is suggested by the facts in State v. Benjamin, 345 S.C. 470, 549 S.E.2d 258 (2001), in which one charged with murder and robbery claimed that the person who was coercing him was the one who killed the victim. Benjamin's jury was instructed on duress regarding the robbery charge but not on the murder. He was convicted of both offenses and apparently failed to raise the issue of the duress defense for an accomplice to murder. The Court concluded that the duress instruction on the robbery charge was adequate. The person doing the coercing is, of course, guilty of the offense. See Chapter IV.E. Parties to Criminal Offenses.

Duress is not a defense to murder and cannot be used to mitigate murder to voluntary manslaughter. State v. Rocheville, 310 S.C. 20, 26, 425 S.E.2d 32, 35-36, cert. denied, 508 U.S. 978 (1993). In affirming a murder conviction two...