DURESS AS A DEFENSE 

WE CAN FIGHT YOUR ST. PETERSBURG CRIMINAL CHARGE

Duress is recognized as an affirmative defense in the state of Florida. In raising a duress defense, the accused admits to committing the crime charged, but asserts that he or she did so to avoid a dangerous situation or other emergency that he or she did not intentionally cause. If the jury finds that the defendant committed the charged offense because of duress, the jury must find the defendant not guilty. It should be noted that in Florida, duress is not a defense to premeditated or attempted premeditated murder. An experienced St. Petersburg area criminal defense attorney can explain the duress defense in greater detail and whether it presents a viable defense in your case.

Applicable Jury Instructions

Florida Standard Jury Instruction 3.6(k) provides as follows:

An issue in this case is whether the defendant acted out of duress in committing the crime of ( crime charged). It is a defense to ( crime charged) if the defendant acted out of duress. In order to find the defendant committed the ( crime charged) out of duress, you must find the following six elements:

1. The defendant reasonably believed [a danger][emergency] existed which was not intentionally caused by the defendant;
2. The [danger][emergency] threatened significant harm to him or herself, or to a third person;
3. The threatened harm must have been real, imminent, and impending;
4. The defendant had no reasonable means to avoid the [danger][emergency] except by committing the ( crime charged);
5. The ( crime charged) must have been committed out of duress to avoid the [danger][emergency];
6. The harm that the defendant avoided must outweigh the harm caused by committing the ( crime charged).

If the defendant has been charged with the crime of Escape, the instruction reads a bit differently, as follows:

It is a defense to ( crime charged) if the defendant acted out of duress. In order to find the defendant committed the ( crime charged) out of duress, you must find the following six elements:

1. The defendant reasonably believed [a danger][emergency] existed which was not intentionally caused by the defendant;
2. The [danger][emergency] threatened death or serious bodily injury;
3. The threatened harm must have been real, imminent, and impending;
4. The defendant left [the place of his or her confinement][the vehicle in which he or she was being transported to or from his or her work on a public road] because he or she reasonably believed that escape was necessary to avoid the danger of death or serious bodily injury, rather than with the intent to elude lawful authority;
5. The ( crime charged) must have been committed out of duress to avoid the [danger][emergency];
6. The harm that the defendant avoided must outweigh the harm caused by committing the ( crime charged).

"Imminent and impending" means the [danger][emergency] is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient to prove this defense. Nor can the defendant use the defense of duress if he or she committed the crime after the danger from the threatened harm had passed.

The reasonableness of the defendant's belief that [a danger][emergency] existed should be examined in light of all the evidence.

In deciding whether it was necessary to commit the ( crime charged) you must judge the defendant by the circumstances by which he or she was surrounded at the time the crime was committed.

The [danger][emergency] facing the defendant need not have been actual; however, to justify the commission of the (crime charged) the appearance of the [danger][emergency] must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the [danger][emergency] could be avoided only be committing the (crime charged). Based upon appearances, the defendant must have actually believed that the [danger][emergency] was real.

If you have a reasonable doubt as to whether the defendant committed the ( crime charged) out of duress, you should find the defendant not guilty.

However, if you are convinced beyond a reasonable doubt that the defendant did not commit the ( crime charged) out of duress, you should find the defendant guilty of all the elements of the charge have been proved.

Relevant Case Law

1. Wright v. State, 402 So.2d 493 (Fla. 3rd DCA 1981)(in prosecution for first degree murder, the trial court did not err in refusing to give requested instruction on duress, where the evidence showed that appellant was herself threatened with death if she did not participate killing the victim, because duress is not a defense to the crime of homicide).

The Bottom Line

Duress is an affirmative defense that may be used as a basis for acquittal under circumstances. The accused must have reasonably believed that committing the crime charged was necessary to avoid significant harm to himself or a third person. If the crime charged is Escape, then the accused must have reasonably believed that committing the crime charged was necessary to avoid serious bodily injury or death. In any event, the duress defense cannot be raised where first degree premeditated murder is charged. It is unclear whether duress may be used as a defense in cases where lesser degrees of homicide are charged.