Duress as an Excuse

Duress as an Excuse

Where a defense sits in the structure of criminal liability determines what the defendant must concede, what the jury is asked to decide, and who bears the burden of proof. Duress carries two classifications that matter for everything that follows. Substantively, it is an excuse, a claim about whether the actor can fairly be blamed rather than a denial that the offense occurred. Procedurally, it is an affirmative defense, which governs how the claim reaches the jury. The two are taken up in that order, because the second follows from the first.

Excuse Versus Justification

Defenses can be sorted by what they say about the charged conduct. A defense that attacks an element says the crime was not committed. A justification says the conduct, though it matches the words of the offense, was the right or at least a permitted choice in the circumstances. An excuse says the conduct was wrongful and the actor should nonetheless not be blamed for it. Duress belongs to the third group: in Dixon v. United States the Supreme Court held that, for purposes of federal criminal law, duress is an excuse, a defense that concedes the defendant's wrongdoing and contends only that he is not blameworthy enough to be punished.¹

Mary's situation shows why. She knowingly carried the cocaine, so both the act and the mental state that the smuggling charge requires are present, and she does not claim that importing the drug was the right thing to do. The defense does not rest on a claim that fear destroyed her capacity to form intent or that her body was moved against her will. The pressure operates on the mind through a threat, and the defendant still does what the crime requires with the mental state it requires.² What she lacked was a fair opportunity to avoid acting unlawfully once a commander promised to kill her family.³

The reason the law excuses in this setting follows from what punishment presupposes. Criminal penalties answer a blameworthy choice, and a person who yields to a credible threat of death has not shown the culpable will those penalties are aimed at.⁴ The law can ask people to be reasonably firm, but it cannot fairly require the resistance of a hero.⁵ The moral weight of the offense then shifts toward the person who made the threat, who remains guilty, frequently as a principal.⁶ The familiar picture is a bank teller who hands cash to a gunman demanding money or his life. But for the threat the teller would be guilty of larceny, yet the law treats him as a victim rather than a criminal.⁷ The New Jersey Supreme Court, in State v. B.H., called duress a normative defense whose moral underpinnings require that it be carefully circumscribed, which means it rests on a judgment about how much resistance the law may fairly expect of people.⁸

The clearest demonstration that duress is an excuse comes from a case in which the conduct cannot be called the lesser evil. Suppose a coercer holds an axe over B's head and threatens to kill B unless B holds C's hands so the coercer can kill C. The harm B helps cause equals the harm B avoids, because an innocent life is lost in place of B's own. A justification theory has nothing to say about that trade, but an excuse theory does: B is excused if a person of reasonable firmness would have yielded to save his own life, and most people are neither heroes nor cowards.⁹ Whether the law permits the defense when the crime is killing is a separate question, since the common law bars it for murder, and the homicide section below takes it up.

The classification is harder to hold than it sounds, because courts do not always use the excuse label. At common law the defense was confined to threats of death or serious bodily harm and was unavailable for murder, so the defendant's act was almost always the lesser harm, and choosing the lesser harm is the mark of a justification.¹⁰ Some courts accordingly speak of duress as justifying the conduct because the defendant avoided a harm of greater magnitude, as the Connecticut Supreme Court did in State v. Heinemann.¹¹ Those decisions show that labels vary by jurisdiction, but the Code's test asks whether a person of reasonable firmness could have resisted, not whether the defendant picked the lesser evil.¹² The full comparison with necessity, the justification that does turn on lesser evil, comes in the last section of this chapter once the elements are in hand.

Duress also requires that the pressure come from a threat made by another human being, so pressure from weather or other natural forces falls outside it.¹³ That requirement gives the exam a first sorting question: whether a person threatened the actor.

Affirmative Defense and Burden

Section 2.09(1) opens by calling duress an affirmative defense, meaning a defense the accused raises in response to a charge that the prosecution may be fully able to prove.¹⁵ The label follows from the excuse classification. Because duress concedes the elements, the State's case-in-chief has no occasion to address it, and the facts that support it (who made the threat, what was said, and why going to the police was no safe option) are known to the defendant rather than the prosecution. The law therefore asks the defendant to bring forward evidence of the coercion. Mary would have to offer evidence of the commander's threat, ordinarily through her own testimony or that of witnesses who know the region, and the State need not anticipate the claim when it proves the importation.

What happens after the defendant produces that evidence differs among jurisdictions. New Jersey enacted § 2.09 in language identical to the Code's and treats duress as an affirmative defense under which the defendant must come forward with some evidence, after which the State must disprove the defense beyond a reasonable doubt.¹⁶ Minnesota's pattern jury instruction, reproduced in State v. Rosillo, tells jurors that the burden is on the State, so that unless they find beyond a reasonable doubt that the defendant did not act out of a reasonable fear of imminent death, the defendant is not guilty.¹⁷ In Dixon, by contrast, the Court also concluded that a defendant may be required to carry the burden of proving duress.¹⁸

The arrangement has two halves with separate reasons. The burden of coming forward with evidence sits on the defendant for the reason just given: the facts of the threat lie within the defendant's knowledge, and a rule requiring the State to rule out every unstated claim of coercion would make it prove a negative with no notice of what to disprove. Where the State must then disprove the defense, the reason is different. A jury that believes the defendant may well have acted under a threat a person of reasonable firmness could not resist has a reasonable doubt about whether she is blameworthy, and convicting her anyway would risk punishing someone blameless. The reasonable-doubt standard the State already carries on every element exists to reduce the risk of convictions resting on factual error, and these jurisdictions extend it to the defense.¹⁹ Dixon shows that this second half is an allocation each jurisdiction can make differently, because duress leaves the State's proof of each element untouched and placing the burden of persuasion on the defendant relieves the State of nothing it must otherwise prove.²⁰

Students lose points here by assuming that the affirmative defense label settles who bears the burden of persuasion. It does not; it says only that the defendant must raise the defense, and the jurisdiction's own rule supplies the rest. The stem or the governing statute will indicate whether the State must disprove duress once evidence is produced or whether the defendant must prove it.

With duress classified as an excuse raised by the defendant, the elements can be read as an inquiry into whether the threat left the actor without a fair chance to refuse. The first element asks what kind of threat can do that, meaning what counts as coercion by unlawful force and whom the threat may be aimed at. That question opens the next section.