Keisha, a bank teller, hands Brian, a bank robber, money out of her drawer after he points a loaded gun at her head. Technically, Keisha embezzled the money from the bank, but she did so based on the objectively reasonable fear that Brian would kill her if she failed to comply with his demands. Keisha can successfully claim duress as a defense to any charge of theft. If Brian had pointed the gun at another client in line at the bank instead of Keisha, Keisha could still prevail using the duress defense because duress also applies when the threat of death or serious bodily injury is to another person.
Change the example with Keisha and Brian, and imagine that Brian’s threat is made in a phone call, rather than in person. Brian threatens to kill Keisha if she doesn’t place thousands of dollars in an envelope and mail it to him at a specified address. If Keisha complies, Keisha cannot prove duress as a defense to theft. Brian’s threat by phone call is not a threat of imminent death. In addition, it is not objectively reasonable to be frightened by a voice on the telephone. Keisha could hang up the phone and contact law enforcement, instead of timidly complying with Brian’s demands.
Change the preceding example with Keisha and Brian, and imagine that Brian orders Keisha to kill his ex-wife Pat, who works at the station next to Keisha. Brian thereafter hands Keisha a switchblade. Keisha cannot kill Pat and claim duress as a defense to murder in most states. Keisha’s life is no more valuable than Pat’s. Therefore, Keisha cannot legally choose to commit the crime of murder and justify the crime with the duress defense.
KEY TAKEAWAYS
- Three elements are required for the choice of evils defense: the defendant must be faced with two or more evils, the evils must b e ranked, and it must be objectively reasonable for the defendant to choose to commit the crime to avoid the imminent evil that is ranked higher.
- Choice of evils is often based on nature or an act of God; duress is generally brought on by another individual.
- Choice of evils and duress are generally not defenses to criminal homicide.
EXERCISES
Answer the following questions. Check your answers using the answer key at the end of the chapter.
- A fire sweeps through a residential neighborhood. Clark and Manny light their neighbor’s house on fire to create a firebreak. This prevents several houses from burning, including Clark’s and Manny’s. Do Clark and Manny have a defense to arson in this case? Why or why not?
- Read Peoplev. Lovercamp, 43 Cal. App. 3d 823 (1974). In Lovercamp, the defendants escaped from prison and were immediately captured. The defendants claimed they were forced to escape because a group of prisoners threatened them with sexual assault. The trial court did not allow the defendants to introduce evidence supporting the defense of necessity, and the defendants were convicted of escape. Did the Court of Appeals of California uphold their conviction for escape? The case is available at this link:http://scholar.google.com/scholar_case?case=6496346791408865822&hl=en&as_sdt=2&as_vis=1&oi=scholarr
- Read Statev.Daoud, 141 N.H. 142 (1996). In Daoud, the defendant was convicted of driving while under the influence. The defendant appealed because the trial court did not allow her to present evidence in support of the duressdefense. Did the Supreme Court of New Hampshire uphold the defendant’s conviction? The case is available at this link: https://scholar.google.com/scholar_case?case=18389754229002463686&hl=en&as_sdt=2&as_vis=1&oi=scholarr
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