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What is Duress in Criminal Law?

In criminal law, duress occurs when a person has been deprived of his free will by threat of violence or threat to personal liberty. A person acting under duress might not be held liable for the crimes he has committed. When a person raises a duress defense, the accused admits to committing the crime, but typically asserts that his actions should be excused due to the duress. A person may also raise a duress defense when force or violence is used to compel him to enter into a contract, or to discharge one.

Duress can be a defense to any crime except the intentional killing or attempted intentional killing of a person. While duress cannot be used as a defense to an intentional killing, it can be used as a defense to establish lack of premeditation for a first-degree murder charge.

What Are the Requirements For a Duress Defense?

  • There must be a threat by another person to kill or severely injure the person acting under duress or a third party (particularly a near relative)
  • The source of the threat causing the duress must be another human being
  • The person acting under duress must believe that the threats are genuine
  • The threat must be present, imminent, and impending at the time of the actor's criminal act. This means that the threatened harm will occur right away if the person acting under duress does not comply
  • There must be no reasonable escape from the threat except to comply
  • The person acting under duress must not be at fault in exposing himself to the duress

Why Isn't Duress a Defense To Murder?

A majority of states will not excuse homicide for reasons of duress. However, a minority of states will drop homicide to manslaughter for reasons of duress. Duress can be a defense to any crime except the intentional killing or attempted intentional killing of a person. While duress cannot be used as a defense to an intentional killing, it can be used as a defense to establish lack of premeditation for a first-degree murder charge.

How Is Duress Used in an Intolerable Prison Conditions Context?

A majority of modern courts allow people who have escaped from prison a duress defense if the escapee turns himself in to the police after escaping. If successful, the escapee won't be punished for escaping, but he will have to finish his sentence in another jail. For an escapee to claim duress he must show that:

  • He faced a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future
  • He had no time to complain to the authorities or the authorities are unresponsive to complaints
  • There was no time or opportunity to resort to the courts
  • There was no evidence of force or violence used towards prison personnel or other innocent persons in the escape
  • He immediately reports to the proper authorities when he has attained a position of safety from the immediate threat

What Are the Limitations for a Duress Defense?

Like explained above, duress cannot be used as a defense to certain crimes such as intentional killing or murder. Also, a defendant cannot use the defense of duress when the defendant committed the wrongful act because he or she placed himself or herself in that situation to begin with either through recklessness, negligence or some kind of fault.

What Can You Do if You are Accused of a Crime but You Acted under Duress?

If you are accused of committing a crime where you acted under duress you should contact a criminal defense lawyer immediately. A criminal defense lawyer can help you mount an effective duress defense against the charges you are facing.

Photo of page author Ki Akhbari

, LegalMatch Legal Writer

Last Modified: 12-19-2016 02:33 PM PST

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