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 circumstances). 

(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 circumstances 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


United States v. Thompson, 63 M.J. 228 (the defense of duress applies when the accused has a (1) reasonable apprehension that (2) the accused or another innocent person would (3) immediately suffer death or serious bodily injury if the accused did not commit the act; a reasonable apprehension does not exist if the accused has any reasonable opportunity to avoid committing the act without subjecting himself or another innocent person to the harm threatened).

2002

United States v. Washington, 57 MJ 394 (duress may be a defense to crime if the defendant was compelled or coerced to commit the crime by some human agency, under a threat of serious imminent harm to the defendant or others; for the defense of duress to apply, the crime committed must have been of lesser magnitude than the harm threatened; the duress must have consisted of threatening conduct which produced in the defendant a reasonable fear of immediate (or imminent) death or serious bodily harm; and an obviously safe avenue of escape before committing the prohibited act nullifies the defense).

(a narrow reading of R.C.M. 916(h) that would permit a member of the armed forces to disobey a lawful order if the servicemember had a reasonable apprehension that he or she, or another innocent person, would immediately be killed or suffer serious bodily injury if he or she complied with the order is at odds with one of the core values of military service -- the willingness of the individual to sacrifice his or her life or well-being for the sake of the nation; when a commander gives an order that is reasonably necessary to accomplish the mission -- including an order involving protective measures, such as defensive positioning, wearing protective armor, or taking a vaccine to counter a biological weapon -- the servicemember is obligated to obey or face punishment).

(the President’s guidance on the duress defense in R.C.M. 916(h) must be read in conjunction with the guidance on disobedience of lawful orders and the essential purposes of military law; the duress defense in R.C.M. 916(h) should be viewed in a manner consistent with the requirement in prevailing civilian law that the threat emanate from the unlawful act of another person).

(there may indeed be unusual situations in which an assigned military duty is so mundane, and the threat of death or grievous bodily harm so clearly defined and immediate, that consideration might be given to a duress or necessity defense; that is not the case where the anthrax vaccination program was designed and implemented as a defensive measure in the face of a significant military threat).

1999

United States v. Olinger, 50 MJ 365 (speculative comment that appellant felt his wife’s depression might kill her if he deployed was insufficient to raise inconsistent matter of defense of duress in guilty plea; there were no details indicating an immediate threat of death or serious bodily harm or that there was no alternative source of assistance other than unauthorized absence.  See RCM 916(h)).

(where appellant’s guilty plea was otherwise provident, Court declined to determine whether the defense of duress could be established through a threat emanating from physical or natural sources other than a third person).

United States v. Rockwood, 52 MJ 98 (duress is a defense to crime if the defendant was compelled or coerced to commit the crime by some human agency, prior to a safe avenue of escape being available, under a threat of serious imminent harm to the defendant or others, and the crime is of a lesser magnitude than the harm threatened; the duress must consist of threatening conduct which produced the following three elements in the accused:  (1) a reasonable 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 any offense except killing of an innocent person 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”, unless the accused had a reasonable opportunity to avoid committing the crime without bringing about the threatened harm).

(military judge’s instruction, which blended elements of duress to the circumstances of appellant’s conduct and included elements of necessity, comported well with general civilian criminal law, and expressed an objective standard common to both duress and necessity).


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