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DURESS AS A DEFENSE 

If another person compels a defendant to commit an offense, the defendant may claim that he or she committed the offense under duress. The defense of duress means that the defendant did not have the necessary mental state to commit the offense or to be criminally responsible for the offense.

The defense of duress is an affirmative defense. The defendant must raise the defense and must prove the defense by a preponderance of the evidence. The defendant's due process rights are not violated by requiring him or her to prove an affirmative defense.

The defense of duress does not apply unless a defendant was actually engaged in certain prohibited conduct. If the defendant denies that he or she committed the conduct, the defense does not apply. The amount of force that is required for the defense depends upon whether the defendant is charged with a felony or a misdemeanor. If the defendant is accused of a felony, the defendant must show that he or she committed the offense under a threat of imminent death or serious bodily injury to himself or herself or to another person. If the defendant is accused of a misdemeanor, the defendant must show that another person used force or threatened to use force that compelled the defendant to commit the offense.

The defense of duress may be claimed by a defendant even if the person who made the threat was not actually present when the defendant committed an offense. However, the defense cannot be claimed when the defendant fails to escape or to avoid the harm that was threatened by the person. The threat of the harm must be imminent. This means that the person must intend to carry out his or her threat immediately. The defendant must also commit the offense immediately based upon the threat. The threat and the defendant's commission of the offense cannot be separated by a significant period of time unless the defendant's fear continued over the significant period of time.

In order for a defendant to be entitled to a jury instruction on the defense of duress, the defendant must admit that he or she committed the offense and must produce evidence that the offense was justified by the threat of a harm that was greater than the offense. If the defendant knowingly, intentionally, or recklessly exposed himself or herself to another person's threat, he or she is not entitled to a jury instruction on the defense of duress. If the defendant acted merely at the command or persuasion of his or her spouse, the defendant is not entitled to a jury instruction on the defense.

Copyright 2009 LexisNexis, a division of Reed Elsevier Inc.

 

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