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Join the conversation! There are now 6 comments on this chapter's page 83. Duress Doesn’t Always Help. What are your thoughts?
  1. ManYunSoo says

    “reduce it to manslaughter”
    Wait, I could have sworn there was something about duress being a complete defense earlier…

  2. jonah says

    what about the threat of killing his whole family after they kill him? it might not be immediate but if he’s dead there’d be no way to attempt to stop it.

  3. Waffle Sorter says

    Here’s a hypothetical.

    Suppose that I’m a clerk at a gas station. One day some people in ski masks come in and tell me, at gunpoint, to carry the register out to their car.

    But unbeknownst to them, I’ve been robbing gas stations for my own benefit a few times. If that comes to light, does duress apply here? Obviously, even if it does, it’d be only for this specific instance, but can you claim duress when the thing you’re duressed into is something you’re predisposed to do anyway?

    • That’s an excellent question, the kind that explores the boundaries of a doctrine. Here, you’re bringing in a concept from the related doctrine of Entrapment (which we covered earlier), to see if or how it applies in this doctrine of Duress. The short answer is, it depends on your jurisdiction. Some say predisposition isn’t relevant to duress, others do.

      Entrapment and Duress are defenses of “no mens rea.” In other words, you didn’t commit the act of your own free will. We only punish acts that were morally wrong, which means there was a conscious choice or awareness. If you punch me in the nose on purpose for no good reason, you chose to do it, and so you’re blameworthy. But if another person overpowered you, grabbed your arm, and punched me with your fist, then you had no say in the matter, and you cannot be blamed. Entrapment and Duress are different ways that someone else punches me with your fist.

      If a police officer tricked you into thinking punching me was the right thing to do, then that’s Entrapment. If instead that police officer held a gun to your head, and threatened to shoot you if you didn’t punch me, then that’s Duress.

      Entrapment is about fair play — it’s fine if the government merely creates an opportunity to commit a crime, but they’re not allowed to manufacture a crime and then punish the person they fooled into doing it.

      To make sure the government didn’t make you do it, we look for two things. First, did the government “induce” you to do it — which means more than just asking, but pressuring you to do it. Second, and most important, were you already “predisposed” to do it — meaning it didn’t take much to convince you to agree.

      “Predisposed” doesn’t mean “previously disposed.” So even if you’ve never committed a crime before in your life, and an undercover cop offers you a thousand dollars to steal something for him, and you agree… that’s not entrapment. It’s not the cop who made you someone who’d say yes. You were already someone who’d say yes. That’s what the law means by “predisposed.”

      (Now, if you had already committed many thefts before, that would be useful evidence of your predisposition, but it’s not what constitutes your predisposition. The fact that you were someone who wouldn’t take much convincing this time is what matters.)

      So is that something Duress cares about?

      Duress isn’t about fair play, but force. It’s not that the cops made the crime, but that you were literally overpowered. It’s not that you were deceived, it’s that you were forced.

      So it doesn’t care who induced you to do it. And it doesn’t care if it’s something you would have done if you hadn’t been forced to do it. It only cares whether your free will was overcome by force or threat. Duress only asks if there was an immediate serious threat, if you had reason to take it seriously, and if you had no other reasonable way out. So at first glance, it would seem that predisposition is irrelevant to duress.

      But isn’t the principle that the threat overcame your free will? What if you would have done it anyway, if they’d just asked nicely? Does the fact that they stuck a gun in your face absolve you of guilt, when that threat was why you did do it, but the threat wouldn’t have been necessary to get you to do it? That’s where your question gets interesting, because technically, the defense of Duress doesn’t ask it!

      Some jurisdictions don’t care. It’s not important whether you might have freely chosen to do it. The fact is that here, you did not freely choose to do it. You were forced to do it this time, and so you acted under duress. End of analysis.

      My state of New York, however, is one that does care. If you raise the defense of duress, the prosecution can introduce evidence of prior crimes in order to show that you were “a person predisposed to criminal conduct and not one whose will needed to be overcome.” The idea is that Duress and Entrapment are both “affirmative defenses” where the defendant has a burden of proof, and the prosecution is then allowed to disprove it. The court that created the rule said that, since predisposition is relevant to Entrapment, it must also be relevant to Duress. In both defenses, the court said, the issue is an absence of intent. If the prosecution can disprove that absence in Entrapment with prior criminal conduct, then why can’t it disprove that absence in Duress as well? People v. Calvano, 30 N.Y.2d 199, 205 (1972)

      One could argue it’s a stupid rule. Entrapment and duress are different doctrines, with different histories and purposes, not to mention different elements. And again, just because you might have done this of your own free will in another situation doesn’t mean you weren’t still coerced in this case. One could argue that the issue ought to only be whether you were coerced here, not whether that coercion might hypothetically have been unnecessary. But that argument hasn’t been made in New York, and it’s still the rule here. (In addition, one might argue that evidence of the previous offenses is unfair, as it will taint the jury into convicting you because you’re “a criminal” rather than because you committed this particular crime. But the jury instructions say they’re not allowed to use the evidence for any other purpose than to assess whether the defendant was coerced. And our system pretends that if the words are in the instructions, then the jury did precisely what they say.)

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