Excuse: Duress - The Nature Of The Threat, The Nature Of The Crime, The Mistaken Defendant, The Semiculpable Defendant - Superior orders: husbands and wives
defense threatened person raised
The defense of duress is typically invoked when someone has been pressured into committing a crime by another person's threat. According to the Model Penal Code, an actor is excused in committing a crime if "he was coerced to do so by the use, or the threat to use unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist" (Section 209(1)). The defense has been raised, for instance, by a chiropractor who claimed to have been forced to file false medical claims in behalf of a gangster who threatened to kill him otherwise. It was raised by a wife who claimed that the only reason she helped her husband commit a bank robbery is that he would have killed her if she had not. It was raised by a drug smuggler who was caught with several cocaine-filled balloons in his stomach: he argued that both he and his family would have been killed if he hadn't done as he did. Likewise for the driver of the getaway car in a terrorist hit; and the member of a Trinidad commune who killed the girlfriend of another commune member on the instructions of the commune leader. In each of these cases the perpetrator of a serious crime insisted that the duress of being threatened with death, or of seeing his family threatened with death, should excuse him and should result in his acquittal.
The defense has an ancient lineage. It was already recognized in Roman law. Renowned commentators—Blackstone and Hale, for example—and countless judges over the centuries have treated it as a well-established part of the common law. Yet despite this ancient lineage, there are periodic calls for its abolition and persistent questions about its scope and rationale.
A soldier who knowingly obeys an illegal order from a superior will not be able to invoke the duress defense, unless he was threatened with great physical harm for disobedience. Strangely enough, in days of yore, a wife who obeyed her husband's order to commit a crime, automatically was granted the duress defense. That rule has now been entirely repudiated.
Additional Topics
What sort of threat will justify the invocation of the defense? First, the threat has to be quite serious. It will not suffice for the defendant to say that unless he had agreed to help another man break into a bank, the man would have taken some of his own property. Second, the threat has to be illegal. It will not suffice for the defendant to say that unless he had committed a bank robbery, he w…
Some think that duress, if it is sufficiently severe, will excuse any crime. According to the traditional common law position, however, killings, and maybe even treason, can never be excused by duress. In recent times, this issue was most vividly posed in Lynch v. Director of Public Prosecutions, the aforementioned British case involving someone who had been pressured by terrorists to drive their …
What if the defendant is mistaken in thinking he is being threatened? Suppose he misunderstood; suppose he mistakenly read menacing implications into an adversary's genuinely innocent remark that "he hoped he would have a long and healthy life." If his mistake is reasonable, he is probably still entitled to claim the defense. A reasonable misunderstanding is generally deemed d…
Courts have also been much troubled by the case of the defendant who has kept bad company and thus gotten himself into the situation where someone thinks to bear pressure on him to commit a crime: the defendant who joins a gang and is then rightfully fearful about leaving it or about not doing what is asked of him, lest he be killed in retribution. Some jurisdictions deny the duress defense altoge…
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 Cod…
Master Sergeant William Olsen was captured during the Korean War by the Communist forces
in late 1950 and taken to the Kangye prisoner of war camp. There the Chinese who ran the camp set out to "reeducate" him and his fellow prisoners as to the true nature of the war, namely that "they were the victims of the warmongers and were the aggressors in Korea" (U.S. v. Olse…
Why do we have the law of duress? Its justification has been as controversial as its scope. One simple justification is due to Thomas Hobbes, the seventeenth-century political philosopher and author of Leviathan. According to Hobbes, we grant the duress defense because it simply would not do any good to threaten someone subject to duress with punishment. He would still not be moved to act any diff…
American Law Institute. Model Penal Code and Commentaries. Philadelphia: ALI, 1980. ——. Understanding Criminal Law. New York: Matthew Bender/Irwin, 1995. Chapter 23. …
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The concept of a Portuguese empire in Africa in the late nineteenth century was problematic because of this dominant Creole presence.