What is the Defense of Duress?

From time to time, we received calls asking questions about the defense of duress.  In Indiana, duress is an affirmative defense defined by statute.  An affirmative defense provides a legal justification for one’s actions. A successful defense of duress establishes a lack of criminal culpability for otherwise criminal acts.  The fact that the criminal act occurred is conceded, but the argument is that there was a justifiable reason why the defendant committed the act.  This reason, as an affirmative defense, would absolve the defendant from liability for committing the crime.  The State, then, has the burden of disproving the affirmative defense beyond a reasonable doubt.   Specifically, duress is defined by I.C. 35-41-3-8, which states that:

“It is a defense that the person who engaged in the prohibited conduct was compelled to do so by imminent serious bodily injury to himself or another person.  With respect to offenses other than felonies, it is a defense that the person who engaged in the prohibited conduct was compelled to do so by force or threat of force.  Compulsion under this section exists only if the force, threat, or circumstances are such as would render a person of reasonable firmness incapable of resisting the pressure.”

Clearly, the defense of duress is only available in extremely limited circumstances.  It is important to note that the statute goes on to state that individuals who recklessly, knowingly, or intentionally place themselves in a situation in which it was foreseeable that they would be subjected to duress cannot later claim the defense of duress.

The defense of duress is also not available in cases that involve offenses against the person, such as battery, robbery, murder, etc.  Like many states, the Indiana law on duress reasons that physically harming someone else to avoid being harmed is not a sufficient justification.  In practice, duress is most commonly seen in cases in which someone is forced to commit a non-violent act (selling drugs, trafficking with an inmate, criminal trespass, etc.) after being threatened with violence.

As noted in the statute, in order to claim duress, the defendant must have been subjected to an imminent threat of serious bodily injury.  In Murrell v. State, the defendant was charged with trafficking with an inmate as a Class C Felony.  Murrell v. State, 960 N.E. 2d 854, 856 (Ind. App. 2012).   In this case, the defendant conceded that she brought contraband into a prison to give to an inmate.  The defendant claimed the defense of duress, stating that persons unknown to her had called and threatened her with harm if she did not deliver contraband to the inmate.  The trial court rejected the defense, stating that the harm from the threats were not imminent.  The court clarified that the defendant could have contacted the police at any time after she received the threatening phone calls and before going to the prison the next day.

Duress is one of several affirmative defenses that may apply to your case.  If you are charged with a crime and believe that duress may be an issue in your case, please contact the experienced criminal defense attorneys at Banks & Brower, LLC.  We are available at all times by calling us at (317) 870-0019, or by emailing info@banksbrower.com.