JUSTIFICATION AND EXCUSE

B. Elements of the defense: In most jurisdictions, the defendant must establish the following elements in order to claim the duress defense:

1. Threat: A threat by a third person,

2. Fear: which produces a reasonable fear in the defendant

3. Imminent danger: that he will suffer immediate, or imminent

4. Bodily harm: death or serious bodily injury.

C. Rationale for defense: The rationale that is sometimes expressed for the defense is that, generally speaking, the harm that is likely to befall the defendant (death or serious bodily injury) is greater than the harm he will cause by doing crime. If the defendant is threatened with death unless he helps carry out a robbery, for instance, his acquiescence represents a choice of the lesser harm (the robbery) over the greater harm (death). Accordingly, some courts would probably refuse to allow the defense where the harm feared by the defendant is not as great as that which he commits. (This theory probably explains the generally-accepted rule that duress is no defense to intentional homicide; see infra.)

1. Model Penal Code view: But the Model Penal Code does not contain such a requirement that the harm avoided be greater than the harm brought about. Instead, the Code’s test is whether the threat was sufficiently great that “a person of reasonable firmness in [the defendant’s] situation would have been unable to resist.” M.P.C. § 2.09(1). Presumably, however, the enormity of the harm which the defendant will be committing is one of the factors which a reasonable person would evaluate in reaching a decision whether to resist. A reasonable person confronted with a choice between losing a finger and killing an innocent victim, for instance, might be “able” to resist, where he would not resist the choice between his own death and cutting off the victim’s finger.

D. Homicide cases: Courts have traditionally held that the defense of duress is not available where the defendant is charged with the intentional killing of another (i.e., murder or voluntary manslaughter). This is true even though the defendant is threatened with his own death if he refuses and, in theory, true if the defendant is asked to sacrifice the life of one innocent person, in order to save those of several. Some states have changed this rule by statute—by not imposing an automatic ban on the duress defense in homicide cases—but most states appear still to follow it. L, pp. 468-69, 472.

Example: D is charged with kidnapping and murdering V. D and others had suspected V of having molested two small girls, one of whom was the daughter of X. D defends on the grounds that X threatened to “beat the shit out of” D if D didn’t kill V. A California statute grants the defense of duress except where the crime charged is one that is “punishable with death.” At the time the statute was enacted (in 1850), all first-degree murder was punishable by death, so duress was never available in a first-degree murder case. Today, the version of murder with which D is charged could not be punished with death, so D argues that the defense of duress must therefore be available to him.