Instruction 9.230, Criminal Model Jury Instructions for Use in the District Court

DURESS

“Necessity is the defense one pleads when circumstances force one to perform a criminal act.

Duress, or coercion, applies when human beings force one to act.” Commonwealth v. Garuti, 23

Mass. App. Ct. 561, 564 (1987), quoting from United States v. Nolan, 700 F.2d 479, 484 n.1 (9th Cir.),

cert. denied, 462 U.S. 1123 (1983).

In some situations, duress may excuse a person’s committing what

would otherwise be a criminal offense. Duress is a form of coercion. Our

law holds that free will is essential to the commission of a criminal act, and

therefore a person may not be found guilty for an act which he (she)

committed under duress.

If evidence of duress is present, you may not find the defendant guilty

unless the Commonwealth proves beyond a reasonable doubt that the

defendant did in fact commit the offense, and also proves beyond a

reasonable doubt that the defendant did not act under duress.

To prove that the defendant did not act under duress, the

Commonwealth must prove one of the following three things beyond a

reasonable doubt:

First: That the defendant did not receive a present and immediate

threat which caused him (her) to have a well-founded fear of imminent

death or serious bodily injury if he (she) did not do the criminal act. The

threat must be imminent and must be present throughout the commission

of the crime; or

Second: That the defendant had a reasonable opportunity to escape;

and or

Third: That the defendant, or any other person of reasonable

firmness, had a choice and would have been able to do otherwise in the

circumstances.

The defense of duress is not available

If relevant to the evidence.

to a person who voluntarily enters into a criminal enterprise and

willingly places himself in a situation in which it is likely that he

could be subject to coercion. The defense is also not available

to a person who recklessly places himself in a situation where it

is likely that such coercion may be applied.

To conclude, if there is evidence of duress, the Commonwealth must

prove beyond a reasonable doubt that the defendant did in fact commit the

offense, and must also prove beyond a reasonable doubt that one or more

of those three factors were not present.

Commonwealth v. Robinson, 382 Mass. 189, 198-209 (1981); Commonwealth v. Perl, 50 Mass. App.

Ct. 445, 447-48 (2000) (reaffirming imminence requirement); Commonwealth v. Egardo, 42 Mass.

App. Ct. 41, 44-45, rev’d on other grounds, 426 Mass. 48 (1997) (preferable to avoid language that

“a threat of future harm is not enough,” since this formulation has been criticized as emphasizing the

proximity requirement at the cost of logic, since all threats involve future harms); Garuti, 23 Mass.

App. Ct. at 565.

The same rules of proof apply to coercion by a husband as by anyone else. Commonwealth v.

Barnes, 369 Mass. 462, 467-68 (1976). The common law presumption that a wife who commits a

crime in the presence of her husband has been coerced by him into doing so, see e.g.,

Commonwealth v. Helfman, 258 Mass. 410, 416 (1927); Commonwealth v. Egan, 103 Mass. 71, 72

(1869), has been abolished.