Monday, April 20, 2009

Duress

Duress is a defense against criminal charges. It is raised when the defendant alleges that they were forced to commit a crime. The common law approach to duress-as opposed to the MPC approach-has three requirements:

1. The threatened injury must induce a fear that an ordinary man would yield to.
2. The impending danger must be imminent.
3. The threat must be of death or serious bodily injury.

Additionally, duress can be raised if the threat was directed at a loved one. However, duress is not a valid defense against homicide.

State v. Toscano (1977, New Jersey)

Facts
Toscano was a chiropractor who was pressured to defraud an insurance company. Toscano was ordered to falsify documents, or else he and his wife would be harmed. He complied, and did not make financial gains from the insurance fraud.

The jury was never given an instruction on duress, because the trial judge did not feel danger was imminent. Toscano was found guilty of insurance fraud.

Question
Should the jury have received instructions on duress?

Holding
Yes

Reasoning
The New Jersey Supreme Court tossed out the common law approach, and adopted the MPC approach instead. Under the MPC, the threat of danger need not be imminent.

And the winner is...
Toscano, sort of. The case was sent back for retrial, this time with the proper jury instruction.

summarized from Life of a Law Student

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