What is a Duress Defense?

Duress is an affirmative defense to a criminal charge. Notably, the defendant must prove another person forced him to commit the crime. See Dixon v. United States, 548 U.S. 1, 7 (2006). If he can prove this at trial, then this defense will excuse his conduct. As a result, the jury will find the defendant not guilty of the crime.

For example, a defendant may raise this defense in a drug case. If a drug dealer forced him to smuggle drugs across the border, then this affirmative defense may apply. However, the defendant must present evidence for this defense to work. If the defendant does not provide evidence for this defense at trial, then the jury will not consider when it decides the case.

How do you raise a Federal Duress Defense?

Strikingly, there is no federal law that lists the elements for this defense. However, common law allows defendants to raise this defense in court.

To present a duress defense, the defendant must show the following 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 terms for a duress defense. In short, it excuses the person for committing the crime.

Can you raise a Duress Defense in Texas state courts?

Yes. Texas allows the duress defense in state court. 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.

Furthermore, the defendant must confess to the crime. That is, he must say: “I did it. But I had a good reason. Let me explain.” Courts call this the “confession-and-avoidance” doctrine.

But this defense is dangerous. It requires the person to admit guilt. And if the person confesses but does not meet the terms of this defense, then he is in real trouble. He will not be able to argue that he acted under duress during closing arguments. This will almost certainly mean the jury will find him guilty.

For this reason, a defendant should consider the pros and cons of presenting this defense at trial.

San Antonio Criminal Defense Lawyer

The duress defense excuses a person’s crime. But it is tricky. It requires the person to meet strict terms. This includes confessing to the crime. If he meets the terms, then a jury may find him not guilty of the crime. This is true even if the person committed the crime. However, if he does not meet the terms, then he may walk himself into a jail cell.

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