Using Duress as a Defense in Criminal Court

If you have been accused of committing a crime, your lawyer will analyze the situation and determine what your best defense will be. There is an array of possible defenses that can be used in criminal court when evidence makes it clear that you did commit the act of which you're being accused. One that is sometimes used is called duress. If your lawyer has recommended that you plead "not guilty" to a crime because the act was was committed under duress, here is what you need to know about this defense.

What is duress?

The legal definition of duress is pressure that is exerted upon a person to commit an act that he or she would not ordinarily perform. The pressure can come in many forms, including threats, harassment and intimidation. Duress can also consist of psychological torture, brainwashing, and false imprisonment.

For example, consider a situation in which a woman is taken captive by a group of kidnappers who, over the course of several weeks, make numerous threats to her health and safety. After a few weeks of captivity, she is taken to a bank and told to participate in a robbery. She is told that if she does not participate, she will be shot. The woman participates because she fears for her life. If she is criminally charged with bank robbery, her lawyer can argue that she is not guilty because she committed the robbery under duress. In other words, she only robbed the bank because she feared for her life if she did not do so.

What requirements must be met in order for you to use duress as a defense?

In order for you to use duress as a defense for committing an illegal act, four primary criteria must be met. These include the following:

1. You must have been threatened with serious bodily harm or death.

In order to argue that you committed an act under duress, your lawyer will need to demonstrate that the threats against you were substantial. For instance, if someone threatens to cut down a tree in your yard if you do not rob a bank, this would likely not qualify, since this would not cause you serious bodily harm. On the contrary, if they threaten to cut off your arm if you don't rob a bank, this would be considered a serious threat.

2. The harm that you've been threatened with must be worse than the harm that you'd suffer for committing the illegal act.

There's clearly some room for interpretation and judgement with this criterion. However, if the consequences of committing the illegal act are obviously worse than the consequences you were threatened with, the judge or jury will not likely agree that the crime was committed under duress. It would have been less harmful for you to just take the consequences you were threatened with than to commit the crime. For example, if someone threatens to scratch your arm with a stick if you don't commit a murder, this would not likely be considered duress. The consequences of being charged with murder are a lot worse than a scratch!

3. The threat must be inescapable.

If it can be shown that you had a simple way out of the threat or a way to avoid the threat, then most likely, the judge or jury won't agree that you were under duress. For example, imagine you are at the house of a friend. That" friend" says that if you don't get into your car and drive to the nearest bank to rob it, he will come kill you in your sleep the next night. The "friend" stays in the home and sends you off to rob the bank alone. In this scenario, you have a chance to escape—you can drive to the police station instead of the bank. Since you had that chance to "escape" the threat, it's unlikely a jury or judge would agree that you were under duress.

4. You cannot have become involved in the situation that led to the crime under your own volition.

If you knew your decisions would lead to you being involved in the criminal scenario of which you're being accused, but you made them anyway, then you will not be found to have been under duress. For example, if you knew a group of people was going to rob a bank, you asked them to help, and then you changed your mind, you won't be found to have been under duress—even if they then threaten you. In this scenario, you made an informed decision to commit the crime—at least initially—so you'll likely be found guilty.

The concept of duress and what does and does not qualify can be very complicated. If your lawyer has recommended that you use this defense in court, don't be afraid to ask questions. The more you understand about your defense, the better equipped you will be to answer questions appropriately when you are put on the stand. If you don't have an attorney yet, contact a criminal law firm like Begley Carlin & Mandio LLP for help.