Duress as a Criminal Defense.

Duress in Michigan is a common-law affirmative defense that applies to situations where the crime committed avoids a greater harm.  People v Lemons, 454 Mich 234, 245-246; 562 NW2d 447 (1997). “[F]or reasons of social policy, it is better that the defendant, faced with a choice of evils, choose to do the lesser evil (violate the criminal law) in order to avoid the greater evil threatened by the other person.” Id. At 246, quoting 1 LaFave & Scott, Substantive Criminal Law, § 5.3, pp 614-615. A defendant has a federal and state constitutional right to present a defense. People v Unger (On Remand), 278 Mich App 210, 250; 749 NW2d 272 (2008).  However, the Defense bears the burden of producing some evidence from which the Jury can conclude that the essential elements of duress are present.  People v. Lemons, 454 Mich 234, 248, 562 NW2d 447 (1997).  If  duress is applicable and allowed by the trial Court, the prosecution must prove beyond a reasonable doubt that the Defendant was not acting under duress.  To establish a duress defense the Jury considers the following issues:

1)     If the threatening behavior would have made a reasonable person fear death or serious bodily harm;

2)   If the Defendant was actually afraid of death or serious bodily harm;

3)      If the Defendant had this fear at the time he or she acted;

4)      If the Defendant committed the act to avoid the threatened harm;

5)  If the situation arose because of the Defendant’s fault or negligence.

The Jury also considers the nature of any force or threats, the background of the person who made the threats or used force, the Defendant’s situation when he or she committed the alleged act, if there was a way the Defendant could have avoided the harm that he or she feared in some other way other than by committing the act.  Another consideration is how reasonable these other means would have seemed to a person in the Defendant’s situation at the time of the alleged act.

The defense of duress is rare and it is very complicated to establish.  However, I successfully argued this issue in an Armed Robbery trial before the Honorable Michael Warren of the 6th Circuit Court.  To present this defense it is vital to produce as much corroborative evidence of the threats or abuse that lead to the criminal act in question.  Does the person who is the source of the force or threats have an assaultive background, assaultive criminal history, Personal Protection Orders against, or gang involvement?  Did the Defendant attempt to contact the police, and if not – why not?  Although the Defendant has a 5th Amendment Constitutional Right to not testify at trial, it may be impossible to establish this defense without the Defendant’s testimony.  How sympathetic is the Defendant?  Is the Defendant a good witness?  What can be used to impeach the Defendant?  Can the impeachment be excluded from the trial?  Such a defense requires great lawyering by the experienced criminal defense attorney.

Duress is not a defense to murder or attempted murder. People v Gimotty, 216 Mich App 254, 257; 549 NW2d 39 (1996). This is because “one cannot submit to coercion to take the life of a third person, but should risk or sacrifice his own life instead.” People v Dittis, 157 Mich App 38, 41; 403 NW2d 94 (1987); see also Wharton’s Criminal Law (15th ed), § 52, pp 344-345 (“As Blackstone put it, ‘he ought rather to die himself than escape by the murder of an innocent.’”).  Outside of murder or attempted murder, duress is available for just about every other type of case if applicable.

The key to a duress defense is to present information concerning the plight of the Defendant in a very sympathetic and compelling manner to the jury.  If the jury is emotionally drawn to in the manner the Defendant was made to act against his or her own will, there is a chance that a not guilty verdict will be reached.


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