10.8Duress

“Duress is a common-law affirmative defense.”¹ People v Lemons, 454 Mich 234, 245 (1997). “It is applicable in situations where the crime committed avoids a greater harm.” Id at 246. “A successful duress defense excuses the defendant from criminal responsibility for an otherwise criminal act because the defendant was compelled to commit the act; the compulsion or duress overcomes the defendant’s free will and his actions lack the required mens rea.” People v Luther, 394 Mich 619, 622 (1975). “[D]uress is not a valid defense to homicide” or “to the crime of possession of a dangerous weapon by an inmate.” People v Ramsdell, 230 Mich App 386, 400 (1998) (quotation marks and citation omitted).

Note: Duress is not the same as necessity. “‘The difference between the defenses of duress and necessity is that the source of compulsion for duress is the threatened conduct of another human being, while the source of compulsion for necessity is the presence of natural physical forces.’” People v Hubbard, 115 Mich App 73, 77 (1982), quoting People v Hocquard, 64 Mich App 331, 337 n 3 (1975).

A.Elements of Defense

The essential elements of duress are:

“‘A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;

B) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant;

C) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and

D) The defendant committed the act to avoid the threatened harm.’” People v Lemons, 454 Mich 234, 246-247 (1997), quoting People v Luther, 394 Mich 619, 623 (1975).

“In other words, to raise the affirmative defense of duress, the defendant must offer evidence that the prohibited act was done under circumstances that excuse its commission.” Lemons, 454 Mich at 247 n 17.

“A mere threat of future injury is insufficient to support a defense of duress.” People v Ramsdell, 230 Mich App 386, 401 (1998). “Rather the threatened danger must be present, imminent, and impending.” Id. Additionally, danger must not have resulted from the negligence or fault of the person claiming the defense. Lemons, 454 Mich at 247.

B.Factors That May Preclude a Duress Defense

A duress defense may be forfeited under the following circumstances:

•If the defendant fails to take advantage of a reasonable opportunity to escape, when escape could be accomplished without unduly exposing himself or herself to death or seriously bodily harm; and

•If the defendant fails to discontinue his or her conduct as soon as the alleged duress is no longer coercive. People v Lemons, 454 Mich 234, 247 n 18 (1997)

C.Burden of Proof

A defendant must establish a prima facie case of the elements of duress before he or she is entitled to a jury instruction on the defense. People v Lemons, 454 Mich 234, 248 (1997). In other words, to properly raise the affirmative defense of duress, the defendant must introduce some evidence from which the jury could conclude that the elements of duress are satisfied. People v Luther, 394 Mich 619, 623 (1975). Once the defense is successfully raised, the prosecutor must prove beyond a reasonable doubt that the defendant did not act under duress. People v Terry, 224 Mich App 447, 453-454 (1997).

D.Caselaw and Application

“[D]uress may be asserted as an affirmative defense to felony murder if it is a defense to the underlying felony.” People v Reichard, 505 Mich 81, 83 (2020). In People v Gafken, ___ Mich ___, ___ (2022), the Supreme Court held that “Reichard’s rationale extends to allowing duress to be asserted as an affirmative defense to what is known as depraved-heart second-degree murder”² and “error in denying the defense was not harmless.” “Depraved-heart murder does not present the choice between sparing one’s own life or taking the life of an innocent. It is not kill or be killed. Rather, the choice presented here is like the choice in Reichard: lose one’s life or commit a lesser felony than intentional murder[.]” Id. at ___. “Because [defendant] alleges that she chose to do the lesser evil, a duress defense is available.” Id. at ___. Further, the error was not harmless because the “denial of the defense, coupled with the trial court’s exclusion of any evidence that [defendant was threatened], effectively left [defendant] with no defense at all.” Id. at ___ (declining to address the burden issue because it was not included in order granting oral argument on the application).