What is a Duress Defense?

Duress is an affirmative defense to a criminal prosecution. The defense of duress arises when one person threatens another person into commiting a crime. See Dixon v. United States, 548 U.S. 1, 7 (2006). The coercion is a credible threat of serious bodily injury or death.

For example, a defendant may raise a duress defense in a drug case. If he is forced to smuggle drugs across the border by a bad actor, then this affirmative defense may apply. If he can prove he acted under duress, then he may be able to avoid criminal liability for the drug crime. However, the defendant bears the burden of proving he acted under duress.

How do you raise a Federal Duress Defense?

Interestingly enough, there is no federal statute that lists the elements of the duress defense. However, common law and case law allow defendants to present a duress defense in federal court.

To raise a federal duress defense, the defendant must prove the following four elements by a preponderance of the evidence:

  1. The person was under an illegal and immediate threat of such a nature that would cause a well-grounded concern of death or serious bodily injury;
  2. He did not recklessly or negligently put himself in a situation where it was probable that he would be forced to perform the criminal conduct;
  3. He had no reasonable legal alternative to violating the law, that is, a chance to both refuse to do the criminal act and also to avoid the threatened harm; and
  4. That a direct causal relationship may be reasonably anticipated between the criminal act and the avoidance of the threatened harm.

These are the four elements of the duress defense. It allows a defendant to avoid criminal liability even though he committed the crime.

Can you raise a Duress Defense in Texas state courts?

Yes. Texas state courts recognize the duress defense. Texas Penal Code Section 8.05 provides:

  • (a) It is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another;
  • (b) In a prosecution for an offense that does not constitute a felony, it is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by force or threat of force.
  • (c) Compulsion within the meaning of this section exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting pressure.
  • (d) The defense provided by this section is unavailable if the actor intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion.
  • (e) It is no defense that a person acted at the command or persuasion of his spouse, unless he acted under compulsion that would establish a defense under this section.

To raise a duress defense in Texas state courts, the person must first admit to the crime. That is, he must admit he committed the criminal act. And that he had the criminal intent to violate the law. Courts call this the “confession-and-avoidance” doctrine.

Duress as a Defense in Criminal Law

The duress defense arises when a bad actor threatens a defendant into commiting a crime. If the defendant does not commit the crime, then the bad actor will harm the defendant, his family, or both. In these situations, the defendant can raise the duress defense at trial.

However, the defendant bears the burden of proof. He must prove he acted under duress by a preponderance of the evidence. And the defendant must show that he meets all the legal elements of the duress defense. If he can prove these elements, then the defendant may avoid criminal liability even if he committed the crime.

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