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Held, the defense of duress is not available in any murder prosecution today, even in cases where the death penalty no longer applies. There is no evidence that the legislature ever “intended the substantive law of duress to fluctuate with every change in death penalty law.” (But one member of the court, concurring and dissenting, argued that the legislature had indeed intended to allow the duress defense in non-capital murder cases, though that judge believed that D had not presented substantial evidence that he acted under duress here.) People v. Anderson, 50 P.3d 368 (Cal. 2002).

1. Justifications: Two principal justifications for the “no duress in murder cases” rule have been articulated:

a. Greater good required: At least where the choice is between the defendant’s life and that of an innocent victim, morality demands that the defendant sacrifice his own life. (Presumably, this would not apply where the threat is that more than one person, say, the defendant’s entire family, will be killed if the defendant does not kill one victim.)

b. Immunization of terrorists: More forcefully, allowing the duress defense to murder charges would permit the leader of a terrorist gang, or of a gang of kidnappers, to immunize his entire gang against all murder charges. Each member of the gang could say, perhaps truthfully, “I would have been killed had I not obeyed.”

i. Anderson case agrees: The California Supreme Court in Anderson, supra, made this point: “California today is tormented by gang violence. If duress is recognized as a defense to the killing of innocents, then a street or prison gang need only create an internal reign of terror and murder can be justified, at least by the actual killer. Persons who know they can claim duress will be more likely to follow a gang order to kill instead of resisting than would those who know they must face the consequences of their acts. Accepting the duress defense for any form of murder would thus encourage killing.”

2. Model Penal Code allows: But the Model Penal Code allows duress to be a defense to all criminal charges, even murder. See M.P.C. § 2.09(1), granting the defense of duress to one whose conduct “was coerced … by the use of, or a threat to use, unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been on able to resist.” The section makes no exception for murder cases, and the Official Comment says “that even homicide may sometimes be the product of coercion that is truly irresistible[.]”

3. Felony-murder: Duress has always been accepted as a defense to a charge of felony-murder. For instance, suppose D is coerced into driving X to a robbery site, and during the robbery, X accidentally or intentionally kills a bystander. Under the felony-murder doctrine, D would ordinarily be liable for murder. But since D would be allowed to assert the duress defense to the underlying accomplice-to-robbery charge, he would not be liable of any underlying felony, and therefore could not be convicted of felony-murder. See L, p. 470.

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