Criminal Defense

What Is a ‘Duress Defense’ in Criminal Law?

January 14, 2022 by Sarah Edwards in Criminal Defense  
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The Duress Defense

Under federal law, a defense of duress is allowed in a criminal case if the defendant admits to the crime. The defendant must also be able to prove that the crime was committed under duress, sometimes referred to as coercion.

In essence, duress means that a crime was committed when the defendant had to do so under the threat of death or serious harm.

Elements Required to Show Duress

To successfully show that a crime was committed under duress, the following elements must be present.

An Immediate Threat of Death or Bodily Harm Against the Defendant

Under this requirement, the person must have been compelled to commit the crime because of a threat. For example, if someone held a gun to the defendant’s head and threatened them with death if they did not drive them away from the scene of a crime, it could be argued that the action was done under duress.

A Reasonable Fear that the Person Would Carry Out the Threat

A defendant who is subject to a threat of death or bodily harm would need to show that they had a reasonable fear of harm if they did not abide by the threatening person’s orders.

If the threat was made in jest or a reasonable person would not have felt threatened under the circumstances, then duress would not be proven.

No Way for the Defendant to Avoid Harm Without Committing the Crime

Proving duress requires that the defendant could not have escaped bodily harm or death without doing as they were told to do and committing the crime.

Duress is not available as a defense against every kind of crime. For example, murder cannot be defended with an argument of duress. It is also not an applicable defense when the defendant has placed themselves in a dangerous situation.

Common Questions Surrounding the Duress Defense

If a defendant claims a crime was committed under duress, the prosecution will typically raise several questions. These include the following:

Was There an Immediate Threat?

To be considered duress, there must have been an immediate threat of bodily harm or death placed against the defendant. The threat can not be based on a future possible act or on past violence. The threat may be expressed via words or actions.

Would a Reasonable Person Have Been Afraid?

To reach a decision on this element, a judge and jury will need to analyze all facts of the case and understand the position that the defendant was in. If they find that a reasonable person would have felt scared in the same situation, this qualification will be met.

Were There Alternatives Actions to Committing a Crime?

A court will throw out a defense of duress if it cannot be proven that there were no other options to avoid bodily harm or death other than to commit the crime.

Has the Defendant Proven Duress?

Proving duress requires that the defendant demonstrate that all elements of the defense are met. The defendant is the one who must meet the burden of proof.

Other Defenses Related to Duress

There are two other defenses related to duress. These include necessity and self-defense.

Defense of Necessity

Under a defense of necessity, a defendant attempts to show that the crime was necessary to prevent a greater harm.


The defense of self-defense can be used if the defendant can show that:

  • They believed they were in imminent danger of physical harm
  • Force was necessary to stop the danger

With this defense, an accused must only have used the degree of force in self-defense that was reasonably necessary given the circumstances.

There are two differences between a defense of necessity and one of duress. For a defense of necessity, the harm threatened does not to be immediate. The defendant may have had time to consider the consequences of their actions.

In addition, a defendant must prove the necessity defense based on a preponderance of the evidence. Under the duress defense, the defendant only has to show reasonable doubt.

Does California Recognize the Threat of Duress?

The state of California recognizes the threat of duress.

To be proven, the defendant must show that:

  • A threat was made to harm them if they did not commit an unlawful act
  • They believed their life was in danger if they refused to commit the act

Under California law, the fear that the defendant’s life was in danger must have been reasonable. Threat of future harm is not enough to prove duress. As in other states, duress cannot be used as a defense against murder.

Have You Been Charged with a Crime?

If you have been charged with a crime in California and need legal assistance, call Esfandi Law Group to schedule a consultation. We have significant expertise in criminal law and can help you to reach a fair outcome in your case.

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December 3, 2019
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