Defendant charged with selling marijuana. Defendant admitted to giving marijuana to a cousin because he feared for his cousin’s safety, his own safety, as well as is family’s safety. Two undercover agents took defendant’s cousin on a ride and told cousin that he had to return $120 because a drug he sold was bad. They threatened cousin and had a gun in their possession, but did not threaten him with it directly. Cousin and undercover agent drove to defendant’s home to secure a loan for the repayment. When the defendant had no money to offer, the conversation turned to drugs for repayment, which the defendant had. Defendant agreed to produce a pound of marijuana if the undercover agents would leave the house. Defendant testified he delivered the marijuana out of fear for his wife and child’s safety.
Defendant convicted at trial and appeals on the basis of duress. The trial court “despite defendant’s timely objection, limited the defense of duress to the fear which the defendant entertained on his own behalf, excluding the jury’s consideration of the defendant’s concern for the safety of his family.
Duress – “A claim that the defendant’s apparent criminal conduct is negated by reason of the fact that he engaged in the conduct as a result of the threat of violence and from which threat he could not safely withdraw. However, the defense of duress is unavailable where one takes an innocent life.”
Whether defense of duress for non-homicidal crimes may be predicated on fear for the safety of others.
Yes. Defense by necessity is relevant because it allows the defense to be invoked “where the offender acts not only to protect himself but also to protect others whom he is bound to protect.” Duress may be invoked “not only where the defendant fears for his own safety, but also, where he fears for the safety of others, in particular the members of his family.” The jury should, therefore, be made aware of the defendant’s concern for his family which consequently induced his criminal activity. Were it not for his desire to protect his family, with the undercover officers present with their weapons visible, he would not have committed the crime.
Duress is similar to necessity, which is “An act which would otherwise be a crime may be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him, or upon others whom he was bound to protect, inevitable and irreparable evil; that no more was done than was reasonably necessary for that purpose; and that the evil inflicted by it was not disproportionate to the evil avoided.”
The standard rule is that duress is no defense to the purposeful killing of others. The logic behind this is that a person ought to be willing to die himself before killing another.