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Common Defense to Colorado Criminal Charges – Duress

 

Introduction: To fully understand Colorado Criminal Law – you must begin by understanding the crime charged.  Then you turn to legally cognizable defenses that you can assert at trial if such defense or defenses exist. What follows are some of the defenses that Colorado Criminal Law provides as possibilities.

Justification Defenses

A justification defense deems conduct that is otherwise criminal to be socially acceptable and non-punishable under the specific circumstances of the case. Justification focuses on the nature of the conduct under the circumstances.

Examples include:

• Self-defense

• Defense of others

• Defense of property and habitation

• Use of lawful force

• Necessity

Excuse Defenses

Excuse defenses focus on the defendant’s moral culpability or his ability to possess the requisite mens rea or mental state.  An excuse defense recognizes that the defendant has caused some social harm but that he should not be blamed or punished for such harm.

Examples include:

• Duress

• Insanity

• Diminished capacity

• Intoxication (in very limited circumstances)

• Mistake of fact

• Mistake of law (in very limited circumstances)

The Defense of Duress in Colorado

This webpage address the Colorado Criminal Defense of Duress.

When Colorado jury’s are instructed on the defense of duress at trial – the court reads the following instruction.

H:10 DURESS

It is an affirmative defense to the crime of (insert name of crime) that:

the

1. the defendant engaged in the prohibited conduct at direction of another,

2. because of the use or threatened use of unlawful force upon him or upon another person,

3. which  a  reasonable  person  in  the  defendant’s situation would have been unable to resist,

and

4. the defendant did not intentionally or recklessly place himself in a situation where it was foreseeable that he would be subjected to such force or threatened use thereof.

In addition to proving all of the elements of the crime charged beyond a reasonable doubt, the prosecution also has the burden to disprove the affirmative defense beyond a reasonable doubt.

After considering all the evidence, if you decide the prosecution has failed to disprove beyond a reasonable doubt any one or more elements of the affirmative defense, you must return a verdict of not guilty.

This law is ALSO found in the Colorado statutes at  – §18-1-708, C.R.S.

DURESS

General Principles

Generally speaking, a person may be acquitted of any offense except murder if the criminal act was committed under the following circumstances:

(1) Another person issued a specific threat to kill or grievously injure the defendant or a third party, particularly a near relative, unless he committed the offense;

(2) The defendant reasonably believed that the threat was genuine;

(3) The threat was “present, imminent, and impending” at the time of the criminal act;

(4) There was no reasonable escape from the threat except through compliance with the demands of the coercer; and

(5) The defendant was not at fault in exposing himself to the threat.

Duress as a Defense to Homicide

The common law rule, expressly adopted by statute in some states, is that duress is not a defense to an intentional killing. A very few states recognize an “imperfect” duress defense, which reduces the offense to manslaughter. Courts are split on the availability of the duress defense in felony-murder prosecutions.

Model Penal Code On Duress

Duress is an affirmative defense to unlawful conduct by the defendant if:

(1) he was compelled to commit the offense by the use, or threatened use, of unlawful force by the coercer upon his or another person; and

(2) a person of reasonable firmness in his situation would have been unable to resist the coercion. [MPC § 2.09(1)]

The defense is unavailable if the defendant recklessly placed himself in a situation in which it was probable that he would be subjected to coercion. If he negligently placed himself in such a situation, however, the defense is available to him for all offenses except those for which negligence suffices to establish culpability. [MPC § 2.09(2)].

The Code’s duress defense is broader than the common law in various respects. First, it abandons the common law requirement that the defendant’s unlawful act be a response to an imminent deadly threat. Second, the defense is one of general applicability, so the defense may be raised in murder prosecutions.

The Code defense is similar to the common law in two significant ways. First, the defense is limited to threats or use of “unlawful” force; therefore, it does not apply to coercion emanating from natural sources. Second, in conformity with the common law, the Code does not recognize the defense when any interest other than bodily integrity is threatened.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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5445 DTC Parkway, Penthouse 4
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