Duress in the United States
Duress Definition
Personal restraint, or fear of personal injury or imprisonment. (…). Deprivation of one of his freedom of will and act by the unlawful acts of another. Duress exists where one is induced by another’s unlawful act to make a contract or perform some act under circumstances which prevent his exercising free will. 45 Mich. 569. Duress of Imprisonment. That which exists where a man actually loses his liberty. If a man be illegally deprived of his liberty until he sign and seal a bond, or the like, he may allege this duress, and avoid the bond. (…). But if a man be, illegally imprisoned, and, either to procure his discharge, or on any other fair account, seal a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it. (…) Where the proceedings at law are a mere pretext, the instrument may be avoided. (…) Duress per Minas. That which is either for fear or loss of life, or else for fear of mayhem or loss of limb, must be upon a sufficient reason. 1 Bl. Comm. 131. In this case, a man may avoid his own act. Lord Coke enumerates four instances in which a man may avoid his own act by reason of menaces, for fear of loss of life; of member; of mayhem; of imprisonment. Coke, 2d Inst. 483; 2 Rolle, Abr. 124; Bac. Abr. “Duress,” “Murder” (A) (…) Duress of Goods. Restraint of goods under circumstances of peculiar hardship, which will avoid a contract. [1]
Duress or coercion is a defense to all crimes except murder. To successfully establish the defense of coercion, the defendant must present evidence that he performed the criminal action under the threat of imminent infliction of death or great bodily harm to him or a third person. The defendant must present evidence that he reasonably believed the threat of death or great bodily harm would be used if he did not perform the criminal action.
Coercion is very similar to the defense of necessity. It differs in that necessity involves pressure from physical or natural forces, rather than human actions. The classic example of coercion is “putting a gun to someone’s head” to compel action. If there is evidence that the defendant committed the act in question only because he was threatened with physical harm, you should explore a coercion defense. [2]
For a meaning of it, read Duress in the Legal Dictionary here.
Duress in the United States
• Why is duress a problem? We want to know people actually agreed to contract of their own free will. (either under subjective or objective theory). Also violates pareto superior economic model, where at least one of the parties is better off and the other is at least not worse off.
• Pre-existing duty: no consideration, since you’ve already agreed to do what is supposed to serve as consideration.
• Corbin: suggests we should allow courts to separate honest from dishonest party rather than trying to fit into the pre-existing duty rule.
Practical Information
Coercion causing action or inaction against a person’s will through fear. Duress may take the form of physical force, imprisonment, bodily hart. improper moral persuasion, or the three: of any of these. Threat of criminal prosecution constitutes duress, but threat of civil prosecution does not. A contract: made under duress is avoidable at the option of the party subjected to duress. (Revised by Ann De Vries)
Duress Justification or Excuse
Background
The common law as well as the Model Penal Code classifies defenses as either justifications or excuses.
The difference between justification and excuse is explained in the commentaries to the Model Penal Code “[t]o say that someone’s conduct is ‘justified’ ordinarily connotes that the conduct is thought to be right, or at least not undesirable.” . . .”to say that someone’s conduct is ‘excused’ ordinarily connotes that the conduct is thought to be undesirable but that for some reason teh actor is not to be blamed for it.(Model Penal Code Commentaries Article 3, introduction, at 3).
In some cases, a given defense may act as both a justification or excuse.
- Justification defenses include Necessity, Defense of others, Defense of property, Law Enforcement Defense, Consent.
- Excuse defenses include Duress, Entrapment, Ignorance of the Law, Diminished Capacity Defense, Provocation, Insanity Defense, and Infancy Defense.[3]
Duress meaning
Overwhelming force which compels a defendant to act or fail to act to the injury of another. Though that act or ommission would normally constitute a tort, here it may not if the defendant can prove that their conduct was justified because of duress.
Hyde v. Lewis, 25 lll.ApP.3d 495, 323 N.E.2d 533, 537.
Williams v. Rentz Banking Co., 112 Ga.App. 384, 145 S.E.2d 256, 258
Resources
Notes
1. This definition of Duress is based on the The Cyclopedic Law Dictionary
2. Defense Wiki
3. Id.
See Also
- Threats
- Coercion
- Entrapment
- Ignorance of the Law
- Diminished Capacity Defense
- Provocation
- Insanity Defense
- Infancy Defense
Further Reading
- Information about Duress in the Gale Encyclopedia of American Law.
Further Reading (Articles)
DURESS AND THE UNDERLYING FELONY, Journal of Criminal Law and Criminology; October 1, 2009; Shankland, Russell
Duress, Demanding Heroism, and Proportionality, Vanderbilt Journal of Transnational Law; May 1, 2008; Chiesa Aponte, Luis Ernesto
Duress and the Underlying Felony, Journal of Criminal Law and Criminology; September 22, 2009; Shankland, Russell
Economic Duress.(Brief Article), Mondaq Business Briefing; February 25, 2002
Duress and Culpability. (Articles), Criminal Justice Ethics; June 22, 2000; Gorr, Michael
Navy Provides Input to DOJ’s Officer Duress System Guide, Corrections Today; February 1, 2004; Baker, Richard Broyles, Eddie Pomperada, Joey
Throwing the Baby out with the Bathwater? Four Questions on the Demise of Lawful-Act Duress in New South Wales, University of Queensland Law Journal; December 1, 2008; Bigwood, Rick
EXCUSING BEHAVIOR: RECLASSIFYING THE FEDERAL COMMON LAW DEFENSES OF DURESS AND NECESSITY RELYING ON THE VICTIM’S ROLE, Journal of Criminal Law and Criminology; April 1, 2011; Bedi, Monu
Signing under duress, Supply Management; April 26, 2001; Ma, Alan
Video Management Software Integrates Mobile Duress Pendants, Product News Network; March 31, 2014
Duress Systems in Correctional Facilities, Corrections Today; June 1, 2006
Economic Duress: Be Careful How You Act When You Hold All the Power under a Contract, Mondaq Business Briefing; August 12, 2013; Cahif, Ashley
US Patent Issued to Research In Motion on May 24 for “Wireless Communication Device with Duress Password Protection and Related Method” (Canadian Inventors), US Fed News Service, Including US State News; May 27, 2011
Economic duress frustrates lessors’ equipment recovery, Equipment Leasing & Finance; October 1, 1998; Ravin, Carole B Et al
Mobile Duress for K-12, Security Dealer & Integrator; September 1, 2013
Duress In Commercial Contracts – Crossing The Rubicon Of Illegitimate Pressure.(Progress Bulk Carriers Limited’s case against Tube City IMS LLC ), Mondaq Business Briefing; April 17, 2012; Simpson, John
Duress alert system.(Inside product news), Law Enforcement Product News; September 1, 2005
The doctrine of economic duress. Australasian Business Intelligence; April 8, 2002
Inovonics to Demo Integrated Milestone Video and Enterprise Mobile Duress EMD Solution Using XProtect VMS Platform at ISC West 2014, Computer Weekly News; April 10, 2014
FARA Takes Position on Duress/Hostage Alarms.(False Alarm Reduction Association urges alarm companies to limit duress codes), Security Distributing & Marketing; January 1, 2001; Kern, Andy
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