Fla. Std. Jury Instr. (Crim.) 3.6(k)

An issue in this case is whether (defendant) acted out of [duress] [necessity] in committing the crime of (crime charged) (lesser included offenses).

It is a defense to the (crime charged) (lesser included offenses) if the defendant acted out of [duress] [necessity]. To find the defendant committed the (crime charged) (lesser included offense) out of [duress] [necessity], you must find the following eight elements:

1. The defendant reasonably believed [a danger] [an emergency] existed.

2. The defendant reasonably believed the [danger] [emergency] would cause death or serious bodily harm to [himself] [herself] [another].

3. The perceived harm of death or serious bodily injury was imminent and impending.

4. The defendant did not intentionally or recklessly place himself in a situation in which it was probable that [he] [she] would be forced to choose the criminal conduct.

5. The defendant had no reasonable means to avoid the [danger] [emergency] except by committing the (crime charged) (lesser included offenses).

6. The (crime charged) (lesser included offenses) was committed out of [duress] [necessity] to avoid the [danger] [emergency].

7. The perceived harm that the defendant avoided outweighed the harm caused by committing the (crime charged) (lesser included offenses).

8. The defendant ceased [his] [her] criminal conduct as soon as the necessity or apparent necessity for the criminal conduct ended.

“Imminent and impending” means the [danger] [emergency] is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient for this defense to apply.

The reasonableness of the defendant's belief that [a danger] [an emergency] existed should be examined in the light of all the evidence.

In deciding whether it was necessary for the defendant to commit the (crime charged) (lesser included offenses), you must judge the defendant by the circumstances by which [he] [she] was surrounded at the time the crime was committed.

The [danger] [emergency] facing the defendant need not have been actual, however, to justify the commission of the (crime charged) (lesser included offenses), the appearance of the [danger] [emergency] must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the [danger] [emergency] could be avoided only by committing the (crime charged) (lesser included offenses). Furthermore, the defendant must have actually believed the [danger] [emergency] was real.

There is a conflict in the appellate courts about which party has the burden of persuasion for this affirmative defense. According to Smith v. State, 826 So. 2d 1098 (Fla. 5th DCA 2002), once the defense satisfies its burden of production for all the elements of the defense, the burden is on the State to disprove the affirmative defense beyond a reasonable doubt. According to Tyler v. State, 131 So. 3d 811 (Fla. 1st DCA 2014), once the defense satisfies its burden of production for all the elements of the defense, the burden remains on the defendant to prove the affirmative defense. The First District’s opinion suggests the common law applies, which means the defense must prove the affirmative defense by the preponderance of the evidence. Until the Florida Supreme Court resolves the issue, trial judges outside of the First and Fifth Districts must choose which district court of appeal to follow. All judges must instruct on the burden of persuasion.