Duress

courtmartialdefenselawyers11.04.27 2When a defendant raises a duress defense, the defendant admits to committing the offense, but claims to have done so because of the apprehension of “immediate death or serious bodily harm.” Therefore, the defendant is not criminally responsible. R.C.M. 916(h).

The military court has found that apprehension is a “fear sufficient to cause a person of ordinary fortitude and courage to yield.”

Immediacy of fear of harm

The immediacy element of the defense is designed to encourage individuals promptly to report threats rather than breaking the law themselves.

In United States v. Logan, the Court held that an accused’s statement in mitigation that he had received phone calls threatening his family’s safety did not raise a possible defense of duress given that the threats occurred thousands of miles away from his family and that the accused “did not attribute his motivation for committing the offenses solely to his alleged fear for their safety.” 47 C.M.R. 1, 3 (C.M.A. 1973)

In United States v. Olson, the Court held that there was no duress where the threat was of possible, future mistreatment. 22 C.M.R. 250 (C.M.A. 1957)

In United States v. Palus, 13 M.J. 179 (C.M.A. 1982) the Court found that the defense of duress was not proper where the defendant claimed that he feared for his family’s safety when his wife was harassed in Las Vegas about his gambling debts.

In United States v. Ellerbee, 30 M.J. 517 (A.F.C.M.R. 1990) the Court found that the evidence was sufficient to raise the question of duress.

In United States v. Riofredo, 30 M.J. 1251 (N.M.C.M.R. 1990) the Court found that the evidence was not sufficient to raise duress.

bestmilitarydefenseucmjdefenselawyer03In United States v. Jemmings, 1 M.J. 414, 418 (C.M.A. 1976) the Court found that the threat to inflict harm the next day was sufficient to activate a duress defense where accused’s company commander had previously refused to assist.

In United States v. Biscoe, 47 M.J. 398 (C.A.A.F. 1998) the Court found that sexual harassment did not constitute duress when victim conceded that she did no fear for her life or the lives of her children when she went AWOL.

Beatings of accused by shipboard personnel resulting in bruising and bloody urination raise the defense of duress in a UA case. United States v. Barnes, 60 M.J. 950 (NMCMR 2005)

Life threatening racial attacks and sexual harassment. United States v. Hullum, 15 M.J. 261 (CMA 1983); United States v. Roberts, 14 M.J. 671 (NMCMR 1982), rev’d in part, 15 M.J. 106 (CMA 1983).

Reasonable opportunity to seek assistance

Reasonable opportunity to seek assistance negates a reasonable apprehension that another innocent person would immediately suffer death or serious bodily prison

In United States v. Vasquez, the Court held that a reasonable apprehension does not exist if the accused has any reasonable opportunity to avoid committing the act without subjecting himself or another innocent person to the harm threatened. The accused had a reasonable opportunity to seek legal advice or information concerning his fears of Turkish jails without relying on a “Hollywood dramatization.” 48 M.J. 426 (C.A.A.F. 1998).

No reasonable escape

courtmartialdefenselawyers11.03.25 2In order for duress to exist, there must be no reasonable escape from the threat except to comply. C.M. 916(h). In United States v. Banks, 37 M.J. 700 (A.C.M.R. 1993), the Court found that duress was not a valid defense where the defendant was charged with being AWOL, due to the serious illness of his mother.

Financial hardship is not duress

Financial hardship is not considered duress under military law. In United States v Barnes, the Court found that a threat to harm the defendant’s finances did not amount to duress. 12 M.J. 779 (ACMR 1981).

No defense to homicide

Duress is never a defense to homicide.

No defense to disobedience of valid military order

Duress is never a defense to disobedience to valid military orders, even if the orders require performing dangerous activities. In United States v. Talty, 17 M.J. 1127 (N.M.C.M.R. 1984), the Court found that duress was not a valid defense where a sailor refused his commander’s order to enter the reactor chamber of a nuclear submarine because he believed that the radiation from the reactor could cause him harm. See C.M. 916(h)

Target of Threat

The defense of duress may be raised where the defendant acted in response to a threat against any innocent person. R.C.M. 916(h). In United States v. Pinkston, 39 C.M.R. 261(C.M.A. 1969), the Court held that a threat against the defendant’s fiancée and child can raise the defense of duress. Similarly, in United States v. Jemmings, 1 M.J. 414 (C.M.A. 1976), the Court allowed a duress defense where the defendant’s children were threatened.

Duress Defense and Trial Strategy

If a defendant raises duress as a defense, in order to rebut the duress claim, the prosecution may introduce evidence of the defendant’s other voluntary crimes. See United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977); M.R.E. 404(b).