Cameron Miranda
The defence of duress is available to those who committed a crime due to a threat or use of physical force. Duress is not a justification for committing a crime but can serve as an excuse if the defendant can prove that they had a reasonable fear of imminent death or serious bodily harm and had no alternative but to commit the crime. The defence of duress is not available for certain crimes, such as murder, and the availability of the defence may vary depending on the jurisdiction.
| Characteristics | Values |
|---|---|
| Definition | Duress is a defense available to those who are forced or compelled to commit a crime due to threats or circumstances. |
| Applicability | Duress can be used as a defense for most crimes except murder and killing an innocent person. Some states also exclude other serious crimes, such as treason, piracy, and sexual assault. |
| Requirements | The defendant must prove they had a reasonable fear of imminent death or serious harm and had no alternative but to commit the crime. The threat must be present and specific to the situation. |
| Limitations | The defense of duress is not available if the defendant was responsible for getting into the threatening situation or had a reasonable alternative to avoid violating the law. |
| Evidence | The defendant must provide sufficient evidence to support the defense, and the judge will decide if a jury instruction on duress is appropriate. |
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What You'll Learn
Duress vs necessity
The defences of duress and necessity are known as
Duress and necessity defences are similar in that they both require the defendant to have reasonably believed that they had no alternative but to commit the crime. However, the key difference lies in the source of the threat. Duress involves a threat from another person, typically in the form of a threat of death or serious bodily harm, whereas necessity deals with situational or natural pressures. In other words, duress is about a person threatening to harm you, while necessity is about a situation that demands a choice between two evils.
For a duress defence to be successful, the defendant must establish that a reasonable person in the same position would also have committed the crime. The threat must be imminent, and the defendant must have a reasonable fear that the threat will be carried out. Duress is generally not a defence for murder or other serious crimes, as killing someone to avoid being killed yourself is not considered a sufficient excuse. Additionally, the defendant cannot have been responsible for creating the situation that resulted in the threat.
On the other hand, a necessity defence is invoked when a person commits a crime to prevent greater harm. For example, driving under the influence to escape from an abusive partner. The defence must prove that the defendant's actions directly addressed and mitigated the imminent danger, and that there were no legal alternatives to prevent the harm. The necessity defence is often more challenging to establish, as it requires a careful balancing of harms and the specifics of each case are crucial.
In summary, while both duress and necessity defences acknowledge that criminal decisions are not always black and white, they differ in their focus. Duress centres on threats from another person, while necessity focuses on situational or natural pressures that compel a person to choose the lesser of two evils.
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The subjective test
For the subjective test to be successful, it must be established that the defendant's belief in the imminence and severity of the threat was genuine and reasonable given their specific circumstances. The defendant must demonstrate that they had no reasonable alternative but to commit the criminal act to escape the perceived danger. This could include presenting evidence of their attempts to escape or avoid the threatening situation.
It is important to note that the subjective test is not solely based on the defendant's assertions. The judge and jury will evaluate the evidence presented according to an objective standard. They will consider factors such as the nature of the threat, the defendant's characteristics, and whether a reasonable person in the same situation would have also perceived an immediate risk of harm.
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The objective test
The defence of duress is a complex and nuanced area of law, and the objective test is a critical aspect of determining whether an individual can successfully argue that they were acting under duress. This test is applied when the subjective limb has been cleared, and it focuses on evaluating the defendant's actions against those of a hypothetical reasonable person.
Additionally, the objective test considers the proportionality between the threatened harm and the harm inflicted by the defendant's actions. The harm caused by the defendant cannot be greater than the harm they sought to prevent. This aspect of the test ensures that the defence of duress is applied reasonably and justly.
In conclusion, the objective test for duress is a comprehensive evaluation that considers the defendant's characteristics, the presence of alternative options, and the proportionality of the threatened and inflicted harm. This test plays a crucial role in determining whether an individual can successfully argue that they were acting under duress, and it helps ensure that the defence is applied fairly and consistently.
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Duress and murder
Duress is a defence in criminal law that can be used in most cases where a defendant committed a crime because they were forced or compelled to do so by the circumstances or the threats of another. However, duress is generally not accepted as a defence for murder charges, as courts have found that killing someone else to avoid being killed is not a sufficient excuse for homicide. Some states may reduce the murder charge to manslaughter in such cases, but it is still not a complete defence.
The defence of duress has two main components: the subjective test and the objective test. The subjective test evaluates whether the defendant committed the crime because they honestly believed their life was in immediate danger or they faced an immediate risk of serious harm. The objective test, on the other hand, considers whether a reasonable person of ordinary courage, sharing the defendant's characteristics, would have responded in the same way. Both tests must be met for the defence of duress to be successful.
For a successful duress defence, it must be established that a reasonable person in the defendant's position would have also committed the crime. This is similar to self-defence, as it arises from an imminent threat of death or serious bodily harm, and the defendant must show that they had a reasonable fear that the threat would be carried out. Additionally, the defendant must prove that they had no alternative but to commit the crime. The threat must be present and specific to the situation, and the defendant must present evidence that they had no avenue for escape.
It is important to note that the defence of duress is not available if the defendant was responsible for creating the situation that resulted in the threat. The defence also fails if the defendant had a reasonable alternative to violating the law or if the harm caused by the defendant is greater than the harm they were trying to prevent. While duress and necessity defences are often confused, they are technically different. Duress arises from the actions of others, while necessity involves a choice between two evils that arose from the circumstances.
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Duress and voluntary conduct
Duress is a defence that has existed for many centuries and originates in common law. It is a complete common-law defence that operates in favour of those who commit crimes because they are forced or compelled to do so by the circumstances or the threats of another. The defence of duress (by threat) "excuses what would otherwise be criminal conduct" rather than justifies it.
Duress involves illegitimate threats. The common law long allowed a claim if duress was of a physical nature. So long as a threat is just one of the reasons a person enters an agreement, even if not the main reason, the agreement may be avoided.
Duress is commonly used to defend individuals who are compelled or coerced to commit a crime because of the potential for serious imminent harm. It is important to note that duress is not a justification for committing a crime, but it can serve as an excuse when a defendant commits a crime because they face the threat or use of physical force. The defence must establish that a reasonable person in the defendant's position would also have committed the crime. Duress requires the defendant to show that they had no alternative to committing the crime.
A defendant cannot present a duress defence if they were responsible for getting into the situation that resulted in the threat of death or serious injury. The threat must occur in the present, rather than the past, although sometimes a threat of future harm may support the defence. The defendant's fear must be reasonable and specific to the situation. The defendant needs to present evidence that they had no other way to escape the threat.
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Frequently asked questions
Duress is a defence available to those who are forced or compelled by other circumstances or threats to commit a crime.
Duress is available as a defence in most crimes, except for murder. Some states also prohibit its use in other serious crimes such as piracy, sexual assault, and treason.
The defendant must prove that they had a reasonable fear of imminent death or serious bodily harm, and that there was no safe avenue of escape before committing the crime. The threat must also be present and specific to the situation.
Duress arises from the actions of others, whereas necessity involves a choice between two evils that arose from circumstances rather than a specific person. Duress also requires the crime committed to be of lesser magnitude than the harm threatened.
Yes, a possible defence of duress can be raised in a guilty plea context, requiring further inquiry by the judge. However, the accused must provide enough evidence to put the defence into play.
