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Excuse: Duress - The Unreasonably Fearful Defendant

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What if the defendant just is not very courageous, in fact is neurotically fearful and easily moved to commit a crime even just to escape a threat that someone else with more fortitude might have withstood? Usually, the law will then deny him the defense. The law insists on a reasonable amount of fortitude. To be sure, there is some elasticity in the way many codes are written. The Model Penal Code refers to threats that "a person of reasonable firmness in the [defendant's] situation would have been unable to resist." The reference to the defendant's situation allows us to consider many of the circumstances that might make someone unusually fearful—"stark, tangible factors that differentiate the actor from another, like his size, strength, age, or health," as the Model Penal Code (Section 2.09(1)) puts it—but it is certainly not meant to include the fact that the defendant just happens to be possessed of an unusually pusillanimous temperament. Still, there are many mysteries about which circumstances should be taken into account in judging the reasonableness of the defendant's submission to a threat. Consider the hypothetical scenario posed by one commentator about "Frieda, an aspiring novelist [with] a day job in a jewelry store. Clarice steals the only manuscript copy of the novel Frieda has been working on for seven years, and threatens to destroy it unless Frieda leaves the store's door unlocked and the burglar alarm off so that Clarice can burglarize it (which Clarice proceeds to do)" (Kaplan et al., p. 681). Ordinarily we would expect a reasonable person to tolerate the destruction of a piece of his property rather than commit a crime. Are we to take into account Frieda's special hopes and ambitions in judging her? The answer is not obvious.

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