Criminal Defense 101: What is Duress?

Posted on by New Mexico Criminal Law Offices

Criminal Defense 101No one intends to find themselves on the wrong end of the law, but once they are, they are overwhelmed. Not only are you facing jail or prison time, but you have legal jargon thrown about that confuses you further.

If you have been arrested for a crime that you committed only because of specific circumstances, you might hear the term “duress” or “defense of duress” used. If you are coerced into committing a crime, this is a defense option. However, it is best to leave the decision of whether to use it up to a criminal attorney.

In its basic definition, duress allows a defendant to have their actions excused if they can establish that they were forced or coerced into committing a crime. For example, a threat of physical force drives a person to commit a crime.

The Elements of Duress and How You Prove them in Albuquerque Courts

To succeed with a duress defense, you must have three elements present and proven in your case:

  • Immediate Threat: You must have an immediate threat of serious injury or death.
  • Reasonable: You must be of sound mind and have a reasonable fear that the inciter would carry out the threat.
  • Escape: There was no reasonable way to escape other than to commit the crime you were being forced to commit.

Now we will review these three elements further to show just how difficult this defense can be, and what it takes to prove that a person was forced into a criminal act.

Element One: The Immediate Threat Element

You must prove that there was an immediate threat of bodily injury or death if you did not commit the crime. The threat can be done by verbal threats or actions – such as a gun being held to your head. The danger cannot be intermittent. Instead, it must be present and continuous.

Any threat of previous violence would not count because there is no reason to commit a crime if the risk of violent acts is not immediately in front of you.

What About Threats to Others?

Sometimes the court will allow duress defenses if the defendant was committing the act to prevent violence or death to a loved one, such as a spouse or child. These cases are rare, and sometimes duress only applies when it is a threat made to the defendant directly.

Element Two: Reasonable Fear

To say that you acted under duress, you must also prove to the court that your fears were rational and that the threat would be carried out if you did not commit the crime. The fear must be reasonable. Irrational fears that another more reasonable person would not have found to be a threat do not count.

Also, living in an environment of fear does not count. Instead, the threat must be serious, reasonable, and immediate.

Element Three: No Escape

Lastly, you must prove that you had no way to escape in a reasonable manner other than to carry out the crime you were being forced to commit. If there was a way to avoid committing the crime or danger, then the court will not allow for a duress defense.

This is where most defendants will find trouble proving their case. Often the court scrutinizes a duress defense heavily, and the prosecution will look for areas where a person could have escaped. Sadly, the prosecution does not know what it is like to personally be in a situation of duress; therefore, they will look for reasonable opportunities, even though a person’s legitimate fear drove them to commit a crime they otherwise would not have done.

This is where a good defense attorney helps you. They can paint a picture for the judge and jury. They will show that the fear of harm was so intense you had to commit the crime you were being forced to commit because a person with equally similar fears would not have had the ability to find the small escape opportunities that the prosecution brings up. The more the jury can relate to your level of anxiety and what you were thinking at the time, the easier it will be to establish the third element.

Duress is an Affirmative Defense

You must realize that the duress defense is an affirmative one, which means that you must show all elements through the evidence to use it successfully. Realize that your proof does not have to be compelling or extraordinary, but enough to convince a jury that your defense is legitimate.

Duress and Necessity are Not the Same

Defense of duress and defense of necessity sound the same, but they differ. Necessity is a compulsion to act to avoid immediate harm. Necessity does not require that actions of others would force you into the crime. Instead, necessity is choosing the lesser of two evils, which might still need you to commit an offense.

To use this defense, you must show that the harm you prevented was more significant than the harm you caused.

Leave Defense Strategies to the Attorneys

There are a variety of defense strategies out there, but not all fit your case. While you might have a few options, it is best that you wait and speak with an attorney before assuming that duress, necessity or another type of defense will work in your case.

The attorneys at New Mexico Criminal Law Offices have years of experience helping defendants just like you. We understand that most of our clients never intended to cause harm or commit a crime. Many have never even been in trouble with the law. Now you face jail or prison time, fines, and long-term consequences that you never intended.

Speak with us today during a free, no obligation case evaluation. Schedule an appointment now at 505-375-4664 or request your appointment online.