In order to properly use the Defense of Duress, there must be evidence to show that when the criminal act was committed, the Defendant acted under Duress. Duress is established if, because of a threat or menace, the defendant’s or other individual’s Life (ie Death or Great Bodily Harm) would be in Immediate Danger if the criminal act was not done.
The Threat does not need to be an Explicit Statement Uttered by a perpetrator, the flashing of a weapon or known acts of prior violence may be sufficient to show an Implied Threat.
In order to succeed with the Defense of Duress, the fear must be reasonable. A jury is instructed to evaluate whether a reasonable person in defendant’s position would be threatened in the same situation.
One of the central issues with the Duress Defense, is that the potential threat must be Immediate (in contrast to the defense of Necessity, that harm may occur in the future) . It can’t be a harm in a few hours or days, it must be immediate.
Because of its immediacy, acting under Duress is said to negate the element of criminal intent, because of this the defendant never gets the time to form criminal intent.
The Defense of Duress or Criminal Threats must be given as an instruction to a jury if there has been Substantial Evidence shown. Although there is no burden of proof on the Defendant to Prove s/he acted under Duress it’s wise as a defense strategy to gather and investigate facts that would tend to establish the threat(s) and show the Defendant’s Fear was Reasonable.
There are situations that even if the elements of Duress are proven it doesn’t apply to certain crimes, most notably Murder.
If you or a loved one are accused of a San Diego Criminal Offense and the Crime was committed out of Fear that Death or Serious Bodily Injury would occur, give our Duress Defense Attorneys a call for a Free Analysis by calling 619-708-2073 or emailing us at attorneys@hullingerfirm.com.