Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or used by bank robbers. This week’s word is the latter.

Written by: Jeff W. Richards

Crime dramas frequently utilize the trope of a person reluctantly forced to commit heinous crimes because the criminal mastermind has taken his family hostage. The crimes may vary from simple burglary to (in the darker shows) murders or assassinations. This forces the person to live on the wrong side of the law, seeking to rescue his family and clear his name. But how can he ever be safe from the law after committing such dark deeds?

The answer is the concept of duress. Duress is an affirmative defense in both criminal and civil law.  The defendant admits to the court that the basis for the lawsuit is true. He did commit that crime, or sign that contract he is now accused of breaking… but! In his defense, he argues that he was forced to do such things by some other person. The defendant didn’t want to commit crimes or break contracts, but he had no choice due to another’s wrongdoing.

Duress is an absolute defense, meaning that if the court finds it caused the defendant’s actions, he will be cleared. Unfortunately, showing duress can be difficult. People are pressured in many ways without being subject to duress. To rise to the level that can clear a name, the coercion must be sufficient to overwhelm an ordinary person’s force of will. Typically, this means immediate threats of bodily harm to one’s self or loved ones. The threat must also be of such immediacy that the defendant has no other course of action available to him (a gun to the head, or a knife to a brother’s throat).

It is important that the duress both subjectively and objectively overwhelmed the defendant. If the defendant was not actually overwhelmed, or the court does not think an ordinary person would be overwhelmed, the defense fails.

This claim to the court is about equivalent to telling mom “he made me do it,” and will likely be met with the same scrutiny. It’d better be true duress if you expect any leniency from the court, and even that might not slip past “mom.”