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
2002
(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).