DURESS

DURESS

What is the legal concept of “duress”?

In some legal situations, duress may excuse a person’s committing of what otherwise would be a criminal offense. Duress is a form of coercion. It is constraint illegally exercised to force someone to perform an act.

Massachusetts’s law holds that free will is essential to the commission of a criminal act, so therefore a person may NOT be found GUILTY for an act which he or she committed under duress.

If evidence of duress is present, a defendant should be found NOT GUILTY unless the Commonwealth proves beyond a reasonable doubt that the defendant did in fact commit the offense, and also that the defendant did NOT act under duress.

Are “necessity” and “duress” legally the same?

NO, necessity and duress are NOT legally the same.While both are legal defenses, necessity is the defense a person pleads when circumstances force a person to perform a criminal act. Duress, or coercion, applies when human beings force one another to take action.

How does the Commonwealth prove a defendant did NOT act under duress?

To prove that a defendant did NOT act under duress, the Commonwealth must prove ONE of the following three items beyond a reasonable doubt (ONE OR MORE):

  • 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
  • That the defendant, or any other person of reasonable firmness, had a choice and would have been able to do otherwise in the circumstances

In summary, if there is evidence of duress, it is the burden of the Commonwealth to prove beyond a reasonable doubt that the defendant did in fact commit the offense in question AND to prove beyond a reasonable doubt that one or more of the above factors were NOT present.

When is the defense of duress NOT available to a defendant?

The legal defense of duress is NOT available to a defendant in the following circumstances (ONE OR BOTH):

  • 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.
  • When a person places himself or herself in a situation where it is likely that such coercion may be applied

What does the law say on the issue of duress when evidence of an abusive relationship exists?

When the issue of duress is relevant to a case involving an abusive relationship, a defendant is permitted to introduce either or both of the following in establishing the reasonableness of the defendant’s (ONE OR MORE):

  • Apprehension that death or serious bodily injury was imminent
  • Belief that he had availed himself of all available means to avoid physical combat
  • Perception of the amount of force necessary to deal with the perceived threat

…which include (EITHER OR BOTH):

  • Evidence that the defendant is or has been the victim of acts of physical, sexual or psychological harm or abuse
  • Evidence by expert testimony regarding (ONE OR MORE):
  • The common pattern in abusive relationships
  • The nature and effects of physical, sexual, or psychological abuse and typical responses to it or them, including how those effects relate to the perception of the imminent nature of the threat of death or serious bodily harm
  • The relevant facts and circumstances which form the basis for such opinion
  • Evidence whether the defendant displayed characteristics common to victims of abuse

Is the duress defense applicable to threats of harm to third parties?

YES, the duress defense is applicable to threats of harm to third parties.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A CRIME AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

 CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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