Concept
Homicide and the Duress Defense
Duress
Homicide and the Duress Defense
The elements taught so far assume an ordinary offense, one in which the harm the actor causes is smaller than, or at least no clearly greater than, the harm he was threatened with. Homicide upsets that assumption, and the law of duress handles it separately. When the demanded act is the killing of an innocent person, the actor is being asked to give up one life to protect another. That is why jurisdictions disagree over whether duress should be available at all when the charge is a killing.
The reason for the special treatment lies in what an excuse does. Duress concedes that the act was wrong and asks whether the actor can fairly be blamed for it, and the answer depends on what the law may reasonably expect of a person of ordinary firmness under the pressure he faced. When the demanded act is a smuggling run or a theft, yielding to a threat of death looks like a human weakness the law can forgive. When the demanded act is the death of an innocent, the harm inflicted is at least as grave as the harm avoided, and the law hesitates to treat one person's life as worth less than another's. Each jurisdiction must then decide how to express that hesitation. It can draw a flat line that withholds the defense from the charge of murder, or it can leave the matter to the ordinary inquiry into whether a person of reasonable firmness could have resisted.
Each answer carries a cost. A flat bar gives a clear rule and announces in advance that no threat entitles anyone to buy safety with an innocent person's life, but it convicts of the gravest offense an actor who may have yielded to a threat that almost no one could have withstood. Leaving the question to the firmness standard fits the logic of an excuse better, since the jury asks what could fairly be expected of this actor in this situation, and the severity of the crime demanded is already one of the circumstances that inquiry weighs. The price is that no one can say in advance whether a jury will excuse a killing, because the outcome rests on the fact finder's judgment in each case. The text of § 2.09(1) takes the second path on its face: it reaches the conduct charged to constitute an offense and contains no exception for homicide.1
The sections below take the rules in the order in which they developed. The traditional common-law rule comes first, because it supplies the baseline against which the later variations make sense. Then come the modern departures: the Code's own text, statutes that write a homicide limit into their wording, and international authority that does not speak with one voice about the killing of innocents.
The Common-Law Murder Bar
The common law begins with a rule of availability and then carves out one crime. Duress can be a complete defense to any offense other than murder, provided the defendant meets the requirements taught earlier: an honest and reasonable fear of immediate harm, threatened by another person through unlawful force, with no fault on the defendant's part in creating the situation, and pressure that would have overcome a person of average fortitude in the defendant's circumstances.2 Murder is the exception. A defendant who kills an innocent person under threat cannot claim duress as a complete defense, although duress can mitigate the charge to voluntary manslaughter.3 The traditional formulation, traced to Blackstone, is that a person threatened with his own death ought to die rather than escape by murdering an innocent.4
Mary's smuggling case shows the general half at work. Her charges are attempted importation of narcotics, conspiracy, and providing material support to a terrorist organization, and none of them is murder, so the exception has nothing to attach to.5 The rest of the common-law inquiry also favors her: she was in actual fear that she and her family would be killed, the group's history made that fear reasonable, she had no hand in making herself vulnerable, and it is hard to imagine anyone resisting such a threat.6 Her difficulty lies elsewhere, in the immediacy requirement, because courts commonly expect a threatened person to report the threat to law enforcement, or to surrender to it, at the first reasonable opportunity.7 That hurdle belongs to the earlier discussion of immediacy. The point here is that the offense charged, and no feature of the coercion, decides whether the murder exception applies.
The change posed at the start of this section isolates the exception. The commander's threat, Mary's fear, and the danger to her family stay the same, but the demand becomes an order to shoot the neighbor who informed on the group, and she complies. The coercion is as strong as it was when the demand was smuggling, yet the charge is now murder, the complete defense is closed, and duress can do no more than reduce the offense to voluntary manslaughter.8 Because only the demanded act has changed, the comparison shows what the exception turns on: the offense the coercer demanded, with the strength of the coercion playing no part.
Two reasons support the exception, and they reinforce each other. The first is a comparison of harms. Duress is allowed for most crimes because, as a matter of social policy, it is better that a threatened person commit the lesser evil of violating the criminal law than suffer the greater evil the coercer threatens.9 That comparison favors Mary when she smuggles cocaine to save her family, but it strains when the demanded act is the killing of an innocent, because the death inflicted on the victim is at least as grave as the death threatened to the defendant.10 The second reason concerns choice. A person told to kill or be killed can still refuse, and death will rarely if ever follow inevitably from refusing, so the law asks that person to resist rather than shift the loss onto someone who has done nothing.11 Mitigation to voluntary manslaughter then marks what the exception leaves standing: an actor who killed under such a threat is less blameworthy than one who killed without it, so the law lowers the grade of the offense without excusing it entirely.
Critics answer that many reasonable people would kill rather than die, or rather than see their loved ones killed, so a flat denial of the defense is unfair to an actor who yielded to a threat almost anyone would have found overwhelming.12 The objection has force because the bar rests on a comparison of harms, while the defense it limits is an excuse that asks what can fairly be expected of this actor. Modern codes respond to that tension in different ways, which the next subsection takes up.
The exception attaches to the defendant's own intentional killing of an innocent person, which is narrower than every charge that carries the label murder.13 Consider a driver whom A compels at gunpoint to take him to a bank that A intends to rob. If A kills a customer during the robbery, the driver is excused of the robbery by duress and so is not guilty of felony murder of the customer.14 The driver's liability for the killing runs entirely through the robbery, so once duress excuses the robbery nothing remains to carry the felony-murder charge, and it would be perverse to strip the defense because the threateners unexpectedly turned a robbery into a killing.
Severity of punishment does not draw the line. Duress can excuse treason, a capital crime, because treason continues over time and leaves room to escape and repair the damage, while a killing is complete once done and cannot be repaired.15
Students lose points on this rule in two directions. One error treats every murder charge as closing the defense, which overlooks that the exception reaches only the defendant's own intentional killing of an innocent and leaves a forced accomplice in a felony-murder case with the excuse earned for the felony.16 The other error stretches the exception to other grave and violent crimes, although duress has been recognized as a defense to robbery, burglary, kidnapping, and arson.17
Whether modern statutes keep this bar, drop it, or reshape it is the question for the next subsection.
Modern Statutory Variations
The common-law murder bar is a judge-made baseline, and modern legislatures did not all adopt it. A legislature that enacts a duress defense must decide what to do when the demanded act is a killing, and the codes answer in three ways: some exclude murder outright, some allow duress on a murder charge only to reduce the offense, and some state no homicide limit and leave the matter to the ordinary elements of the defense. The split is substantial. A significant number of modern duress statutes make the defense available whatever the charge, about half do not allow it when the defendant is charged with murder, and a few state exceptions considerably broader than that.19 Because a homicide problem is decided by the text of the governing statute, the task here is to learn each form well enough to recognize it on sight and to know what it does to a given set of facts.
The first form is the flat exclusion, which withholds the defense whenever the charge is murder. A defendant prosecuted under such a statute receives no duress instruction, however compelling the evidence of coercion. Georgia's statute, Official Code of Georgia Annotated § 16-3-26, is a commonly cited example.20 The attraction of a rule keyed to the charge is predictability: availability is known before trial, no jury is asked whether a reasonable person could have taken an innocent life under threat, and the law states in advance where it draws the line. The price falls on the defendant who truly could not have resisted, since the bar applies with equal force to the strongest coercion and the weakest. Exclusions also differ in breadth, and a few jurisdictions extend them well beyond murder, so the list of excluded offenses has to be read in the statute itself rather than assumed.21
The second form keeps the defense alive on a murder charge for a limited purpose. New Jersey's statute, quoted in State v. B.H., tracks the Code's wording on coercion by unlawful force, the reasonable-firmness standard, and the fault limits, and then adds a sentence: “In a prosecution for murder, the defense is only available to reduce the degree of the crime to manslaughter.”22 Under that text the jury still hears the evidence of coercion and applies the firmness test, but the most it can do for a defendant charged with murder is lower the offense to manslaughter. The provision resembles the common-law rule that duress can mitigate murder to voluntary manslaughter, except that the legislature has written the result into the statute.23 The middle position answers both pressures at once. A killing inflicts at least as grave a harm as the one threatened, so the law will not excuse it completely, yet a person who killed under a credible death threat is less blameworthy than one who killed freely, and the reduction in grade records that difference without erasing the offense.
The third form is the Code's own, which states no homicide limit at all. Section 2.09(1) reaches an actor who engaged in the conduct charged to constitute an offense because of coercion by unlawful force that a person of reasonable firmness in the actor's situation would have been unable to resist, and it contains no exception for homicide.24 The Code's drafters regarded the traditional murder rule as too harsh, which is the background to that silence.25 A defendant on trial for a killing can therefore put the claim to the jury, and the jury decides it with the tools taught earlier in this chapter. Among those tools is the severity of the offense the defendant was asked to commit, which the fact finder weighs together with the nature of the force threatened and the alternatives that were open. In State v. Heinemann, a Connecticut decision applying a statute modeled on the Code, the court stated those factors and recognized that, with the threat held constant, willingness to excuse recedes as the offense becomes more heinous.26 The standard-only approach thus moves the decision from a categorical rule to a judgment, and a demanded killing becomes the heaviest fact against the claim without ever being a bar.
Duress keeps some relevance to a killing even where it cannot acquit. The common-law rule and the New Jersey statute both use it to lower the grade of the offense.27 The Code's capital-sentencing provision, § 210.6, lists acting under duress or under the domination of another person among the circumstances that mitigate a murder.28 Those uses fit the reasoning behind the bar, because a killing under a credible threat is less blameworthy than a killing without one, even when the law will not call it excused.
International law shows the same disagreement. In Prosecutor v. Erdemovic the Appeals Chamber of the tribunal for the former Yugoslavia held that duress does not afford a complete defense to a soldier charged with a crime against humanity or a war crime involving the killing of innocent human beings.29 The defendant was a soldier in a Bosnian Serb Army unit that massacred civilians at Srebrenica, and the tribunal reached its result under customary international law, because the statutes of the ad hoc tribunals contained no defense provisions.30 The decision denies the complete defense for killing innocents much as the common law does, but it concerned a soldier and left open whether a civilian threatened with death unless he killed could claim the defense.31
The Rome Statute of the International Criminal Court goes in a different direction, because article 31(1)(d) expressly provides a duress defense and states no limit for killings, which suggests that duress may be available in principle even against a charge of murder.32 The article imposes three conditions: the conduct must have been caused by duress resulting from a threat of imminent death, or of continuing or imminent serious bodily harm, against the person or another; the person must have acted necessarily and reasonably to avoid the threat; and the person must not have intended to cause a greater harm than the one sought to be avoided.33 Availability on paper does not guarantee success. The trial chamber in Prosecutor v. Ongwen rejected the defense after noting that the accused had a realistic possibility of leaving the situation, did not face death or serious bodily harm when he disobeyed those he said threatened him, and committed some crimes entirely in private.34 For a domestic prosecution the governing statute controls, and the international authorities serve as a comparison.
Students lose this issue by reading a murder exclusion into the Code's text, which has none, and so denying a jury question that § 2.09(1) leaves open.35 The reverse error carries the common-law bar into every jurisdiction as if it were uniform, when modern statutes split and about half exclude murder while the rest do not.36 A third slip treats a murder-to-manslaughter provision as an acquittal, when it only lowers the grade of the crime.37