What is the duress defense?

September 29th, 2018

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The Duress Defense in Massachusetts Criminal Cases

When Coercion Excuses What Would Otherwise Be a Crime

Massachusetts criminal law recognizes that free will is essential to the commission of a criminal act. When a person is forced by another human being—through a present and immediate threat of death or serious bodily injury—to commit what would otherwise be a crime, the defense of duress may excuse the conduct and require an acquittal.

This expanded guide explains what duress is, how it differs from the related defense of necessity, the elements the Commonwealth must disprove once the issue is raised, the situations in which the defense is unavailable, and the special rules that apply in cases involving abusive relationships.

What Is Duress?

Duress is a form of coercion. It is constraint illegally exercised to force someone to perform an act. In the criminal context, it arises when a person commits an offense because of a present, immediate, and impending threat that induces a well-founded fear of death or serious bodily injury if the criminal act is not done.

If evidence of duress is presented, the defendant should be found not guilty unless the Commonwealth proves beyond a reasonable doubt both that the defendant committed the offense and that the defendant did not act under duress.

Duress Versus Necessity

Duress and necessity are related but distinct defenses. Necessity is the defense one pleads when circumstances force a person to perform a criminal act. Duress, or coercion, applies when human beings force one another to take action. The distinction matters because the elements and the proof required differ.

What the Commonwealth Must Prove to Defeat the Defense

Once the issue of duress is fairly raised, the Commonwealth must prove beyond a reasonable doubt that the defendant did not act under duress. It does so by proving one (or more) of the following:

That the defendant did not receive a present and immediate threat which caused him or her to have a well-founded fear of imminent death or serious bodily injury if he or she did not do the criminal act;
That the defendant had a reasonable opportunity to escape; or
That the defendant, or any other person of reasonable firmness, had a choice and would have been able to do otherwise in the circumstances.

The threat must be present and immediate throughout the commission of the crime. A remote or speculative threat is not enough.

When the Duress Defense Is Not Available

The defense of duress is not available in the following circumstances:

When a person voluntarily enters into a criminal enterprise and willingly places himself or herself in a situation in which it is likely that he or she could be subject to coercion; or
When a person places himself or herself in a situation where it is likely that such coercion may be applied.

A defendant who knowingly joins a criminal venture that carries an inherent risk of coercion cannot later claim duress when that risk materializes.

Duress in the Context of an Abusive Relationship

When the issue of duress is relevant to a case involving an abusive relationship, a defendant is permitted to introduce evidence bearing on the reasonableness of the defendant’s apprehension that death or serious bodily injury was imminent, the belief that all available means of avoiding physical combat had been used, and the perception of the amount of force necessary to deal with the perceived threat. Such evidence may include:

Evidence that the defendant is or has been the victim of acts of physical, sexual, or psychological harm or abuse;
Expert testimony regarding the common patterns in abusive relationships, the nature and effects of physical, sexual, or psychological abuse, and typical responses to such abuse (including how those effects relate to the perception of the imminent nature of the threat); and
Evidence whether the defendant displayed characteristics common to victims of abuse.

Practical Notes for Defense Counsel

Raising a duress defense requires careful factual development. Counsel must gather evidence of the precise nature, timing, and immediacy of the alleged threat, the absence of a reasonable opportunity to escape, and the reasonableness of the defendant’s response. In cases involving long-term abuse, expert testimony on the dynamics of coercive control and the cumulative effect of prior violence is often critical to placing the defendant’s perceptions in proper context.

Frequently Asked Questions

Is duress a complete defense?

Yes. If the Commonwealth fails to disprove the defense beyond a reasonable doubt, the defendant is entitled to an acquittal.

Does the threat have to be of harm to the defendant personally?

The classic formulation focuses on a threat of death or serious bodily injury to the defendant. Threats directed at third parties raise additional issues that must be evaluated under the specific facts and the applicable case law.

Can duress excuse murder?

Massachusetts law has limited the availability of duress as a complete defense to intentional murder. Counsel should carefully examine the specific charge and the governing precedents before relying on the defense in a homicide case.

Why Experienced Counsel Matters

The duress defense turns on close questions of imminence, opportunity to escape, and the reasonableness of the defendant’s response. An attorney experienced in both the substantive law and the presentation of expert and lay evidence of coercion can make the difference between a successful defense and a failed one.

Contact Criminal Defense Attorney William J. Barabino

If you or a loved one is facing criminal charges and believes the conduct was the product of coercion or threat, early and experienced representation is essential. The Law Office of William J. Barabino provides client-focused criminal defense throughout Massachusetts.

Call 781-393-5900 today for a confidential consultation.

Visit williambarabino.com for additional resources on criminal defenses and related topics.

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