duress

Duress – When someone has been charged with a crime, it can be a scary and stressful thing.  Criminal charges often carry an undeserved stigma, when in fact it is very easy to be charged with a crime.  Because of this, anyone charged with a crime is presumed innocent, and it is up to the government to prove the defendant guilty.

This standard is the highest burden in the law.  The prosecution has to not only prove every element of the crime, but they have to show that there was no defense. In this blog we will talk about one of those defenses, and that is duress.  This is for informational purposes only and does not adequately substitute the advice and counsel of a criminal defense lawyer.

What is duress?

Duress is an affirmative defense that can be asserted by a criminal defendant that asserts that he was forced to commit the crime he was accused of.  The defendant is stating that he did commit the crime, but it was not through and act of his own free will and therefore, legally, he should not be convicted.

Elements of duress

It is insufficient to simply claim someone was under duress, the following elements must be present:

  • There was a threat of harm or serious bodily injury
  • The threat was immediate or imminent
  • The threat must have created a reasonable fear in the defendant
  • There was no reasonable means to escape the threat other than committing the crime

Asserting the defense of duress 

In North Carolina, like a lot of other jurisdiction, the government must be given notice of the intent to use the defense of duress. If proper notice is not given, that defense might become unavailable to the defendant.

In a criminal trial, it would be up to the defense to show that the defendant committed the crime only because he was under duress. The defense would have the burden of providing evidence of facts and circumstances that rise to the level of duress. The affect of doing this successfully would show the jury that the defendant had a justification for committing this crime and therefore he would be excused from criminal liability.

Limitation of the defense of duress

Typically, the defense of duress is not available for any homicide charges.  The court system historically has not been willing to place the value of one life ahead of the value of the life of another in this context.

Criminal charges can be very complicated, and that is why hiring an attorney will always be better than trying to deal with it yourself. Trial strategy, immigration consequences, and family law consequences can call come up.  If you have been charged with a crime, contact us. Gilles Law handles criminal charges in North Carolina, criminal charges in South Carolina,and Federal criminal charges.