Duress Or Threats As A Criminal Case Defense

Duress as a defense in a criminal case is a limited one.

In such cases, a defendant must argue that he/she was forced to commit a crime under the threat of death or that he was under such extreme duress that he lacked the requisite mental state or intent to commit the crime1.

In other words, your free will was overcome by the immediate threat of death or danger to your life or that of another person so that you had no opportunity to form the intent to commit the crime.

When Is Duress A Viable Defense?

Duress or threats as a defense can exonerate a defendant only under certain conditions. To be a viable defense, you must show the following:

  • You committed a crime under a threat of duress, menace or threat to you or someone else
  • The threat or duress was imminent –it could be carried out immediately
  • The threat was to your life or that of another person
  • The person threatening you demanded that you carry out a crime or the threat would be carried out
  • You had a reasonable belief that the threat could be carried out immediately

The most obvious example is claiming that you committed the crime because another person literally held a gun to your head or knife to your throat or of another person and told you to commit the crime or you or that person would be killed.

In such cases, the threat of death is reasonable and the person demonstrates that he or she is capable of carrying it out immediately.

Standard Of Proof

There are some defenses that must be proved by a defendant by a preponderance of the evidence, which are called affirmative defenses.

These include:

  • Insanity
  • Necessity and.,
  • Self-Defense

But duress as a defense is not an affirmative one so that you only need to present evidence that if believed by the trier-of-fact casts doubt on your intent or culpability.

In all criminal cases, the prosecution must prove each element of a crime, including intent, by the standard of beyond a reasonable doubt.

So if you are asserting the defense of duress that fits the criteria outlined above and the court rules that there is substantial evidence of the defense which is also not inconsistent with the defense theory, then the court is obligated to give the jury instruction sua sponte, or without the defense having to request it.2

Usually, you must produce a witness or some evidence that someone threatened your life unless you went through with the crime for which you are standing trial.

The court need not determine if the evidence is credible, only that there was evidence which if believed by the jury is sufficient to raise a reasonable doubt.3

If these witnesses or other evidence can corroborate your assertion that you were so threatened and a jury feels they are reliable, then such evidence can cast doubt regarding your mental state.

Necessity of Showing a Threat

To avail yourself of duress as a defense, you must show that someone threatened you.

For instance, the person must have told you that you or a third person will be killed unless you commit the crime4.

The crime might be stealing or robbing someone or carrying out a drug transaction for them.

As indicated above, it cannot be a threat to report you to authorities for a previous crime you committed or anything else that does not endanger your life.


The threat of death or of endangering your life must be an imminent one. Usually, the person will hold a knife or gun on you or on someone unless you agree to the criminal act that the person is demanding that you carry out.

If the threat is made by phone, there is no immediacy to it since it is a future fear of death, unless the person is holding a gun or knife on someone with whom they are with and that person confirms the threat to you. In other words, you have no time or opportunity to refuse to do what is demanded of you and your own free will has been overcome by the extreme duress that you are experiencing.

However, if the person making the threat is miles away or tells you that you have 48 hours to commit the crime or you or another person will be killed, then the required immediacy is not present. If you decide to carry out the demand that you commit the crime, then duress is not a defense that you can use.

Further, you may have been threatened with a knife or even a gun numerous times by the same individual such as in a wife battering case where the defendant is the threatened spouse who, upon seeing that the other person is sleeping, decides to kill or seriously injure the spouse who has been making the threat before the defendant suffers further abuse or death.

Since the threat of death or endangerment of life is not imminent, that element is lacking. Duress as a defense cannot be used in homicide cases, either.

The Threat Must Be Of Death Or Endangerment Of Life

The threat that constitutes duress must be one that endangers your life or that of another person, usually a family member5. It cannot be a threat that your spouse will be told of your philandering or to advise your boss that you have been stealing from the firm where you are employed.

Also, if the person threatening you merely said he would break your thumbs if you refused to commit the crime, it likely does not rise to a sufficient degree of duress to be a viable defenses since your life was not endangered. However, if you were threatened with severe torture or great bodily injury and the person threatening you was capable of immediately carrying it out, then you could claim a duress defense6. For instance, you have a heart condition or the torture was so extreme that many people suffer fatal injuries as a result. Also, you might have to show that the instruments to perform the torture were in the room with you.

Reasonable Belief In The Threat

Your belief that the alleged threat was real and could be carried out immediately must be a reasonable one. If you are 6 inches taller and 50 pounds heavier than the person threatening to kill you and the person is unarmed, then the threat to kill is not a credible one.

Duress or Threat in Homicide Cases

The defense of duress in a murder case–that you committed murder because you or a member of your family would otherwise be killed–is not available. Additionally murder cannot be reduced to manslaughter with a duress defense7.

Frequently Asked Questions About The Duress Legal Defense


I was threatened with a severe beating with a baseball bat unless I presented a false drug prescription at the drug store. The person who threatened me had the bat with him when he threatened me and he also accompanied me to the pharmacy. I was later arrested and charged with drug trafficking. Can I use duress as a defense to this crime?


Being beaten by a baseball bat could certainly endanger someone’s life or cause severe brain damage. This should rise to the level of extreme duress. Since the bat was shown to you at the time the threat was made and you had no opportunity to escape, you can assert that you lacked the mental state needed to commit the crime of your own free will or that you had the opportunity to alert police.


My boyfriend escaped from prison but immediately turned himself in. He has been charged with escape and faces additional years in prison. He told authorities that his life had been threatened numerous times by other inmates and he was beaten severely by these inmates. He told the prison guards and authorities of these threats and beatings but no one did anything. Can he use duress as a defense?


This defense is more of necessity than duress. Necessity can be used in an emergency situation that was not created by the defendant and there was no other less harmful way to avoid the threat to him. Also, the threat in a necessity defense does not have to be immediate. Since he promptly turned himself in, his defense is a more credible one. He does have to raise it as an affirmative defense and prove it by a preponderance of the evidence or that it was more likely than not that he escaped due to the threats to his life.


I was threatened with my life unless I drove an escape or getaway vehicle after a bank robbery. During the robbery, a security guard was killed. I have been charged with felony murder. Can I use duress as a defense in this case?


Generally, duress as a defense is not applicable in a murder case but it is available in felony-murder situations like the one you described to apply to the underlying felony, or accomplice to a bank robbery. If the threat to your life was imminent and you had a reasonable and well-grounded fear that you would be killed if you did not do as instructed, then you have a defense.


My brother is of low intelligence and was high on drugs when he was told by another person to rob a woman or he would be killed. There was no evidence that the person who threatened him had a gun or weapon with him when the threat was made but he made a slashing motion with his hand to my brother. Does he have a defense?


Being high on drugs, unless administered to him involuntarily or surreptitiously was apparently of his own choice. Using a slashing motion to indicate that his throat would be cut unless he robbed the woman does not show any immediacy or that the threat to kill him could be immediately carried out. Also, the fact that his resistance to coercion or duress was lessened or increased his ingestion of the drugs is not relevant to duress as a defense. You cannot argue that a reasonable person under the influence of drugs that was self-imposed would have considered the threat imminent and life-threatening. If your brother had a recognized mental illness or defect, then that might be used as a diminished capacity defense.

Additional Defenses

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  1. The defense of duress applies when the threat of danger is immediate and accompanied by a demand, either direct or implied, to commit the crime. (People v. Heath (1989) 207 Cal.App.3d 892, 899–901 [255 Cal.Rptr. 120]; People v. Steele (1988) 206 Cal.App.3d 703, 706 [253 Cal.Rptr. 773]. []
  2. People v. Wilson (2005), 36 Cal. 4th 309, 331. []
  3. People v. Salas (2006) 37 Cal.4th 967, 982. []
  4. Difference Between Necessity and Duress. People v. Heath (1989) 207 Cal.App.3d 892, 897–902 [255 Cal.Rptr. 120]. []
  5. In People v. Pena (1983) 149 Cal.App.3d Supp. 14, 21–25 [197 Cal.Rptr. 264], the court held that the defenses of necessity and duress may be based on threats of harm to a third party. Although Pena is regarded as a necessity case, its discussion of this point was based on out-of-state and secondary authority involving the defense of duress. (See People v. Heath (1989) 207 Cal.App.3d 892, 898 [255 Cal.Rptr. 120] [acknowledging that though Pena uses the terms necessity and duress interchangeably, it is really concerned with the defense of necessity]. []
  6. Penal Code section 26(6) discusses life-endangering threats and several older cases have outlined the defense of duress in the literal language of the statute. However, some cases have concluded that fear of great bodily harm is sufficient to raise this defense. (Compare People v. Hart (1950) 98 Cal.App.2d 514, 516 [220 P.2d 595] and People v. Lindstrom (1932) 128 Cal.App. 111, 116 [16 P.2d 1003] with People v. Otis (1959) 174 Cal.App.2d 119, 124 [344 P.2d 342]; see also 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, § 59 [discussing this split]; but see People v. Subielski (1985) 169 Cal.App.3d 563, 566–567 [211 Cal.Rptr. 579] [court rejects defense of duress because evidence showed defendant feared only a beating].) It is clear, however, that threats of great bodily harm are sufficient in the context of necessity. (People v. Lovercamp (1974) 43 Cal.App.3d 823, 831 [118 Cal.Rptr. 110]; People v. Pena (1983) 149 Cal.App.3d Supp. 14, 27. []
  7. Duress cannot reduce murder to manslaughter. (People v. Anderson (2002) 28 Cal.4th 767, 783 (785 [122 Cal.Rptr.2d 587, 50 P.3d 368] [only the Legislature can recognize killing under duress as new form of manslaughter]. []