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Defendant charged with a federal crime bears the burden of proof to establish a "duress" defense unless Congress has specifically said otherwise; conviction of woman for violating federal gun control law upheld.

Courts have long recognized that "duress" constitutes a defense to a criminal charge, with conduct excused that would otherwise be punishable if the defendant acted under duress. Historically, the defense excused criminal conduct if (1) a threat of imminent death or serious bodily injury led the defendant to commit the crime, (2) the defendant had no reasonable, legal alternative to breaking the law, and (3) the defendant was not responsible for creating the threat. Thus, criminal liability can be avoided if someone forced or coerced the defendant to commit the crime (e.g., after someone held a gun to the defendant's head). The availability of the defense, however, has generally been limited.

After providing an incorrect address and falsely stating that she was not under indictment for a felony, a woman violated federal gun control law when she obtained multiple firearms at a gun show. Although she admitted that she knew she was making false statements and that she knew she was breaking the law, her defense was that she acted under duress because her boyfriend threatened to kill her or hurt her daughters if she did not buy the guns for him.

The trial judge instructed the jury that for this defense to succeed the woman had to prove duress occurred by a preponderance of the evidence (i.e., that it was more likely than not that it occurred). On appeal, the woman argued that the trial judge's instruction was incorrect. She asserted that once she introduced some evidence of duress (thereby entitling her to raise the defense) the prosecutor was then required to prove beyond a reasonable doubt that the duress did not occur.

The United States Supreme Court acknowledged that (1) the prosecution bears the burden of proving beyond a reasonable doubt the elements of a crime and (2) the duress defense, like the defense of necessity, may excuse conduct that would otherwise be punishable. However, the Court distinguished the duress defense from other defenses that focus on the defendant's state of mind at the time of the act (e.g., the loss of mental capacity to commit the crime in question).

As part of a duress defense, the Court reasoned, the defendant admits that she did an act that constitutes a crime and had the required mental state, with the conduct separately excused because the defendant acted under duress. While the prosecution is indeed required to prove beyond a reasonable doubt specific mental states that are an element of a crime (e.g., mens rea), the Court concluded that there is no constitutional basis for also placing upon the prosecution the burden of disproving the defendant's duress defense beyond a reasonable doubt. In this case, the Court noted, the prosecution, relying on the defendant's own testimony, had shown that the defendant knew that she was making false statements and breaking the law by buying a firearm, and thus the prosecution had proven the existence of the elements of the charged offense beyond a reasonable doubt.

The Court next addressed the defendant's argument that even if there is no constitutional basis for placing upon the Government the burden of disproving the defendant's duress defense beyond a reasonable doubt, common law requires the Government to bear this burden. The Court, however, ascertained that until the end of the nineteenth century it was uniformly recognized that the defendant bore the burden of proof for such a defense. The Court did agree that an 1895 decision by the Supreme Court had placed the burden on the Government to prove a defendant's sanity. Davis v. United States, 160 U.S. 469 (1895). But the Court noted that in 1952 it established that this rule was not constitutionally mandated, Leland v. Oregon, 343 U.S. 790 (1952), and Congress overruled the rule in 1984 by statute, thereby requiring a defendant to prove his or her insanity by clear and convincing evidence. 18 U.S.C. [section] 17(b).

Further, the Court distinguished a duress defense from an insanity defense because the evidence that tends to prove insanity also tends to disprove an essential element of the offense charged, namely, the mens rea for the crime committed, while the evidence of duress does not contradict or tend to disprove any element of the charged offense.

In addition, specifically examining the 1968 enactment that the defendant in this case was charged with violating--the Ominbus Crime Control and Safe Streets Act--the Court found no indication that Congress intended to alter the long-established common-law rule that the defendant bears the burden of proof regarding a duress defense. The Court noted that Congress can, if it chooses, enact legislation that places the burden on the Government to disprove duress beyond a reasonable doubt. However, with regard to the firearms law at issue here, the Court concluded in a 7-2 ruling that Congress intended, in accord with the traditional rule, that the defendant bear the burden of proving the defense of duress by a preponderance of the evidence and, thus, upheld the trial court's jury instruction and the defendant's conviction.

Justice Kennedy in a concurring opinion stressed the practical reasons for the Court's holding. He asserted that where a claim of duress is raised, often the person who allegedly coerced the defendant is unwilling to testify (which would acknowledge potentially illegal conduct by that person). As a result, the prosecution may be without any practical means of disproving the defendant's allegations. This, he asserted, justifies placing the burden of proof on the defendant.

Justices Alito and Scalia in their joint concurring opinion added that when Congress enacts any federal crime the presumption should be that Congress intended for a duress defense to be available but with the burden of proving the presence of the duress placed on the defendant, unless Congress explicitly speaks to the contrary.

Justices Breyer and Souter in their dissenting opinion argued, however, that with respect to any federal crime the burden of persuading the jury beyond a reasonable doubt of the absence of duress should lie with the prosecution, absent evidence of Congressional intent to the contrary. They asserted that the question of duress resembles that of mens rea, the existence of which the prosecution must always prove beyond a reasonable doubt. They contended that when a defendant acts under duress she lacks any semblance of a meaningful choice and the resulting absence of free will is similar to a lack of mens rea.

They added that the duress defense also resembles the defenses of self-defense, insanity, and entrapment, for which federal courts (absent a statutory enactment to the contrary) have placed the burden of persuasion upon the prosecution in conjunction with federal crimes. They also contended that most federal courts with respect to most federal crimes have imposed the burden of persuasion for the duress defense upon the prosecution.

The dissent also rejected Justice Kennedy's supposition that practical difficulties of proof justified shifting this burden to the defendant. They countered that in most criminal cases the defendant has a greater familiarity with the facts than the prosecutor but that has not dissuaded society from requiring the government to prove each and every element of a charged offense beyond a reasonable doubt. Dixon v. United States, 126 U.S. 2437 (2006), opinions/05pdf/05-7053.pdf.

Because the woman was being tried in federal court for violating federal law, the definition of duress and the burden of proof employed were drawn from federal law rather than state law. Also, because the Supreme Court ultimately concluded that its ruling was not guided by constitutional law but rather was based on federal common law, this ruling is not binding on the states and the states remain free, for the most part, to craft their own definitions and applications of the duress defense. However, the ruling indicates that states that place the burden of proof on defendants who raise an affirmative defense such as duress, self-defense, insanity, necessity, or entrapment are unlikely to run afoul of the provisions of the federal constitution.
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Publication:Developments in Mental Health Law
Date:Jul 1, 2007
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