Written by attorney Daniel P. Hilf

Duress as a Criminal Defense

Duress is a common-law affirmative defense that applies to situations where the crime committed avoids a greater harm. However, the Defense bears the burden of producing some evidence from which the Jury can conclude that the essential elements of duress are present. If duress is applicable and allowed by the trial Court, the prosecution must prove beyond a reasonable doubt that the Defendant was not acting under duress. To establish a duress defense the Jury considers the following issues:

1) If the threatening behavior would have made a reasonable person fear death or serious bodily harm;

2) If the Defendant was actually afraid of death or serious bodily harm;

3) If the Defendant had this fear at the time he or she acted;

4) If the Defendant committed the act to avoid the threatened harm;

5) If the situation arose because of the Defendant’s fault or negligence.

The Jury also considers the nature of any force or threats, the background of the person who made the threats or used force, the Defendant’s situation when he or she committed the alleged act, if there was a way the Defendant could have avoided the harm that he or she feared in some other way other than by committing the act. Another consideration is how reasonable these other means would have seemed to a person in the Defendant’s situation at the time of the alleged act.

The defense of duress is rare and it is very complicated to establish. However, I successfully argued this issue in an Armed Robbery trial before the Honorable Michael Warren of the 6th Circuit Court. To present this defense it is vital to produce as much corroborative evidence of the threats or abuse that lead to the criminal act in question. Does the person who is the source of the force or threats have an assaultive background, assaultive criminal history, Personal Protection Orders against, or gang involvement? Did the Defendant attempt to contact the police, and if not – why not? Although the Defendant has a 5th Amendment Constitutional Right to not testify at trial, it may be impossible to establish this defense without the Defendant’s testimony. How sympathetic is the Defendant? Is the Defendant a good witness? What can be used to impeach the Defendant? Can the impeachment be excluded from the trial?

Duress is not a defense to murder or attempted murder. Outside of murder or attempted murder, duress is available for just about every other type of case if applicable.

The key to a duress defense is to present information concerning the plight of the Defendant in a very sympathetic and compelling manner to the jury. If the jury is emotionally drawn to in the manner the Defendant was made to act against his or her own will, there is a chance that a not guilty verdict will be reached.

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