Throughout history, across cultures: the duress defense
The definition of the duress defense in criminal law begins with its long recognition as a defense to a criminal charge at common law. The defense of duress goes back thousands of years. Many human cultures recognize it.
A partial, or complete defense
It can be a defense to criminal liability, meaning that if the jury (or other fact-finder at trial) accepts the defense; then the accused is not-guilty. In addition to be a defense to a crime, it can also be a mitigating factor at sentencing.
What is the defense of duress?
When it is a defense, duress means that though the accused did a prohibited act, he or she did not have the required criminal intent to do the act, since the intent was not their own but that of some third-person who was coercing them, acting through them.
Negates criminal intent: Since criminal intent is a required element before a person can be guilty of a crime, the accepted duress defense means the prosecution did not prove the accused guilty of a crime.
Mitigates criminal culpability: When it is not a defense but is a mitigating factor at sentencing, a sentencing judge will sentence the convicted defendant more leniently.
The district court will depart from the presumptive sentence where there are mitigating circumstances, including duress. See, Minnesota Sentencing Guidelines 2.D.3.a
Understanding what the defense of duress is not, helps define it. We’ve already covered the difference between the defense and the sentencing mitigation factor.
The definition of what is not the defense of duress
Though it is possible that the same act could be both the Minnesota crime of coercion as well as support a Minnesota duress defense to a criminal charge, despite potential overlap, the crime of coercion and the defense of duress are two separate things.
In addition, the duress defense is sometimes confused with the defense of necessity, another ancient, common law defense. The U.S. Supreme Court explained:
Common law historically distinguished between the defenses of duress and necessity. Duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law.
While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils. Thus, where A destroyed a dike because B threatened to kill him if he did not, A would argue that he acted under duress, whereas if A destroyed the dike in order to protect more valuable property from flooding, A could claim a defense of necessity. See, generally, LaFave & Scott 374-384.
United States v. Bailey, 444 U.S. 393, 409 (U.S. Sup. Ct. 1980).
Is duress an affirmative defense?
Yes. The Minnesota Supreme Court provides guidance on the defendant’s initial burden of notice and production, followed by the prosecution’s burden of proof, beyond any reasonable doubt:
Defendant is required to adduce sufficient evidence on duress to make the defense one of the issues of the case. At that point the presumption of innocence operates to shift the burden back to the state to show lack of duress, or its converse, specific intent. Defendant’s initial burden of production alleviates the state’s difficulty in “proving a negative.”
State v. Charlton, 338 NW 2d 26, 30 (Minn. Sup. Ct. 1983).
As a common law defense vitiating criminal intent, the defense is generally available. State legislatures and courts, however, can modify the common law by choosing to do so in legislation or appellate court decision.
The common law codified into a Minnesota statute, where two or more persons
Minnesota Statutes §609.08 “Duress” defines the defense, “when any crime is committed or participated in by two or more persons.” Presumably the statute does not modify the common law defense when the allegation claims a crime by one person only.
Minnesota Statutes §609.08 “Duress” provides:
Except as provided in section 609.20, clause (3), when any crime is committed or participated in by two or more persons, any one of whom participates only under compulsion by another engaged therein, who by threats creates a reasonable apprehension in the mind of such participator that in case of refusal that participator is liable to instant death, such threats and apprehension constitute duress which will excuse such participator from criminal liability.
Courts and commentators have criticized the common law version of the defense as overly restrictive, only available under common law “where the actor was under an unlawful threat of imminent death or serious bodily injury” and worse, only available under the Minnesota Statutes above under “threats creates a reasonable apprehension in the mind of such participator that in case of refusal that participator is liable to instant death.”
Minnesota should consider the Model Penal Code version
The Model Penal Code, adopted by some states, provides for a more fair standard. The Model Penal Code defines the threat part of the duress defense as “the actor … was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another” (Model Penal Code § 2.09(1)).
The jury to the rescue?
If the laws themselves no longer protect our rights or serve justice, what’s left? The jury is the last defense for our Constitutional and natural, human rights. Legislation is general principle, conceived far from real cases. The jury has the human drama before it.
An overview of duress defense cases reveals a tension. On the one hand, the accused’s Constitutional rights to present a defense and to a jury trial, competes with, on the other hand, expediency, judicial economy and control. See, e.g., United States v. Bailey, 444 U.S. 393, 409 (U.S. Sup. Ct. 1980), State v. Charlton, 338 NW 2d 26, 30 (Minn. Sup. Ct. 1983), State v. Toscano, 74 N.J. 421, 378 A2d 755 (1977).
Greater credit should be given the jury, to ensure that the right to a jury trial is a real one. Why not let a jury decide? Really decide – without censoring the truth? Let the jury decide what is a valid duress defense.
A true jury trial empowers the jury to decide whether someone is not-guilty, accused of a crime they were “coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another.”
Questions? You can call Minneapolis Criminal Defense Lawyer Thomas Gallagher at 612 333-1500