I caught part of a Criminal Minds rerun in which a vengeful small town resident kidnaps the three daughters of three men he hates, holds them hostage, and tells them that unless any two of them murder the third, he will kill all three.
They do.
This reminded me that I (think I’ve) read about real life cases in which people were still prosecuted for crimes (they claim were) committed under duress. In many, I’m sure that the state simply did not believe the duress claims, but that got me wondering: what laws are there, in general, about duress crimes?
Generally, to establish duress a defendant must show that he acted under an immediate threat of death or serious bodily injury, that he had a well-grounded fear that the threat would be carried out, and that he had no reasonable opportunity to escape or inform the police. But the elements, taken from the common law, vary a bit from jurisdiction to jurisdiction. I believe it is not a defense to homicide in most places.
Example statute from NY:
§ 40.00 Duress.
In any prosecution for an offense, it is an affirmative defense
that the defendant engaged in the proscribed conduct because he was
coerced to do so by the use or threatened imminent use of unlawful
physical force upon him or a third person, which force or threatened
force a person of reasonable firmness in his situation would have been
unable to resist.
2. The defense of duress as defined in subdivision one of this section
is not available when a person intentionally or recklessly places
himself in a situation in which it is probable that he will be subjected
to duress.
Hollywood aside, it is very rarely an issue in real life. I was a prosecutor from 1995-2001, and have been a magistrate since then. I’ve never had it raised in any case with which I’ve been involved, nor have I heard of it ever being raised as a defense by any lawyer I know.
As a non-lawyer, the key problem I see with claiming duress as a defense is that it is based on what a reasonable person would do in the situation. It’s not enough to show just any duress - you have to show sufficient duress that the courts agree that you couldn’t have done much else.
I haven’t seen the show given in the OP, but my guess is that the prosecution would start asking things like “Why not call the police? Why not fake the death of one person instead of really doing it?” The prosecution might even argue that the threat to kill the daughters was just a bluff and should have been treated that way.
In the episode, the man kidnaps the three girls, (obviously takes away their cell phones, etc) and locks them in a metal room from which they cannot escape. Inside the room, there is only the three of them. If they choose one of the three to die, he will let the other two out. Otherwise, he will kill them all. When they finally choose one, he throws in a hammer, forcing them to kill her themselves (whereas the girls had obviously expected that he would do the killing.) And, when one of them finally commits the act, he lets them go, just like he said.
Reminds me of a story from a few years ago where some thugs forced a son to rape his mother at gunpoint. I don’t think that he was prosecuted, and if he were, duress probably would have been the defense put forward.
The reason that duress is probably rarely actually used in court is that prosecuting attorneys probably aren’t going to prosecute if they feel that an otherwise-would-be-crime was committed under duress.
The reason it’s rarely used in a criminal context is that it’s an affirmative defense; in order to avail yourself of it, you have to admit that you committed the underlying act. In the criminal context, defendants very rarely stipulate to anything, particularly of the “yes I did it” variety, unless they’re pleading guilty anyway.