CORE CRIMINAL LAW SUBJECTS: Defenses: Duress (2024)

CORE CRIMINAL LAW SUBJECTS: Defenses: Duress

2011 (September Term)

United States v. Hayes, 70 M.J. 454 (in a guilty plea context, as a matter of law, a possible defense of duress could be raised requiring further inquiry by the military judge without the accused first presenting a prima facie case of duress).

(the defense of duress applies when the accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act; the apprehension must reasonably continue throughout the commission of the act; if the accused had any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense shall not apply; the immediacy of harm necessary may vary with the circ*mstances).

(the accused’s unsworn statement during presentencing that he stole and sold military property because of financial pressure on his mother and her threatened suicide did not raise the possibility of a duress defense with respect to his guilty pleas; among other things, in the course of his plea inquiry, the accused repeatedly disavowed that there were circ*mstances that forced him to take the items and he admitted that he could have avoided the misconduct; moreover, the thefts occurred over five months, nullifying the sense of immediacy the duress defense contemplates and indicating that the accused had the opportunity to avoid committing the acts without causing harm; in particular, three essential elements of duress are plainly absent based on the accused’s own factual recitation and words: the immediacy between accused’s actions and the perceived threat; the continuation of immediacy throughout the conduct in question; and the opportunity to avoid the harm threatened).

(RCM 916(h)(defense of duress) does not foreclose as a matter of law the possibility that a threat of suicide could provide the basis for a duress defense; the duress defense allows an individual to avoid liability because coercive conditions or necessity negates a conclusion of guilt even though the necessary mens rea was present; an accused ought to be excused when he is the victim of a threat that a person of reasonable moral strength could not fairly be expected to resist; to exclude suicide from the defense would shift the analysis from that of whether a person of reasonable moral strength could resist to a mere head-counting exercise).

2007

United States v. Roberson, 65 M.J. 43 (RCM 916(h) provides for the affirmative defense of duress at trials by courts-martial; it is a defense to any offense except killing an innocent person that the accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act; the apprehension must reasonably continue throughout the commission of the act; if the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, the defense shall not apply).

2006

UnitedStates v. Thompson,63 M.J. 228 (the defense of duressapplies when theaccused has a (1) reasonable apprehension that (2) the accused oranotherinnocent person would (3) immediately suffer death or serious bodilyinjury ifthe accused did not commit the act; a reasonable apprehension does notexist ifthe accused has any reasonable opportunity to avoid committing the actwithout subjectinghimself or another innocent person to the harm threatened).2002

UnitedStates v. Washington, 57 MJ 394 (duress may be adefenseto crime if the defendant was compelled or coerced to commit the crimeby somehuman agency, under a threat of serious imminent harm to the defendantorothers; for the defense of duress to apply, the crime committed musthave beenof lesser magnitude than the harm threatened; the duress must haveconsisted ofthreatening conduct which produced in the defendant a reasonable fearofimmediate (or imminent) death or serious bodily harm; and an obviouslysafeavenue of escape before committing the prohibited act nullifies thedefense).

(a narrow reading of R.C.M. 916(h) that would permit a member of thearmedforces to disobey a lawful order if the servicemember had a reasonableapprehension that he or she, or another innocent person, wouldimmediately bekilled or suffer serious bodily injury if he or she complied with theorder isat odds with one of the core values of military service -- thewillingness ofthe individual to sacrifice his or her life or well-being for the sakeof thenation; when a commander gives an order that is reasonably necessary toaccomplish the mission -- including an order involving protectivemeasures,such as defensive positioning, wearing protective armor, or taking avaccine tocounter a biological weapon -- the servicemember is obligated to obeyor facepunishment).

(the President’s guidance on the duress defense in R.C.M. 916(h)must beread in conjunction with the guidance on disobedience of lawful ordersand theessential purposes of military law; the duress defense in R.C.M. 916(h)shouldbe viewed in a manner consistent with the requirement in prevailingcivilian lawthat the threat emanate from the unlawful act of another person).

(there may indeed be unusual situations in which an assignedmilitary dutyis so mundane, and the threat of death or grievous bodily harm soclearlydefined and immediate, that consideration might be given to a duress ornecessity defense; that is not the case where the anthrax vaccinationprogramwas designed and implemented as a defensive measure in the face of asignificant military threat).

1999

UnitedStates v. Olinger, 50 MJ 365 (speculative comment thatappellantfelt his wife’s depression might kill her if he deployed wasinsufficient toraise inconsistent matter of defense of duress in guilty plea; therewere nodetails indicating an immediate threat of death or serious bodily harmor thatthere was no alternative source of assistance other than unauthorizedabsence. See RCM 916(h)).

(where appellant’s guilty plea was otherwise provident, Courtdeclined todetermine whether the defense of duress could be established through athreatemanating from physical or natural sources other than a third person).

UnitedStates v. Rockwood, 52 MJ 98 (duress is a defense tocrime ifthe defendant was compelled or coerced to commit the crime by somehumanagency, prior to a safe avenue of escape being available, under athreat ofserious imminent harm to the defendant or others, and the crime is of alessermagnitude than the harm threatened; the duress must consist ofthreateningconduct which produced the following three elements in theaccused: (1) areasonable fear; (2) the fear must be of an immediate [imminent] harm;and, (3)that harm must be death or serious bodily harm).

(RCM 916(h) provides a defense of “coercion or duress” to anyoffense exceptkilling of an innocent person when “the accused’s participation in theoffensewas caused by a reasonable apprehension that the accused or anotherinnocentperson would be immediately killed or would immediately suffer seriousbodilyinjury if the accused did not commit the act”, unless the accused had areasonable opportunity to avoid committing the crime without bringingabout thethreatened harm).

(military judge’s instruction, which blended elements of duress tothecirc*mstances of appellant’s conduct and included elements ofnecessity,comported well with general civilian criminal law, and expressed anobjectivestandard common to both duress and necessity).