Past articles have focused on justification and the defenses that fall under those categories. Those defenses include: self-defense, defense of others, defense of habitation/property, and necessity. Now we move into the realm of excuse and discuss why we excuse wrongdoers. Here, we introduce two excuse defenses: duress and intoxication.

Duress – Overview

United States v. Contento-Pachon

723 F.2d 691 (9th Cir. 1984).

Convicted with possession with intent to distribute a controlled substance.


Was the trial court wrong to exclude the duress defense?


Duress requires:

  1. Immediate threat of death or serious bodily injury
  2. A well-grounded fear that the threat will be carried out
  3. No reasonable opportunity to escape the threatened harm


Facts meet this element, should have gone to the jury. Reversed.


Defendant was a taxi-driver in Colombia. One of his passengers offered him a job as a private driver. The passenger turned out to be a drug lord and offered the defendant the opportunity to transport drugs. At first, the defendant expressed interest. Later however, the defendant told the drug lord that he would not transport. At that point, the drug lord revealed facts about the defendant’s personal life and threatened his life and family’s life. 3 weeks later, the defendant flew on a plane with the smuggled drugs, was caught and arrested. The defendant said that he did not warn police because he thought they were being paid off by the drug traffickers.


The court approaches each element.

Immediacy: The threat was immediate because even though the transportation would happen in the future, refusal to transport would result in immediate fulfillment of the threat. Likewise the element of a well-grounded fear was present because the drug trafficker took time to examine the personal details of the defendant’s life.

Finally, there was no reasonable opportunity to escape, or at least a jury could find that there was no reasonable opportunity to escape. He feared telling the police, believing them to be paid off by drug traffickers. He also could not flee for fear of being caught and killed because he was watched at all times.

Additional Notes

What is the difference between duress and necessity? Necessity is the choice between two evils that will ultimately achieve a greater good. That is why necessity is a justification, not an excuse. Necessity won’t work here because it is not for the benefit of the general welfare.

Why do we allow a duress defense? Under utilitarian theory: He can’t be deterred because it is not his free will to break the law. Therefore, he is not a fit person for punishment. Under retributive theory: He can’t be punished because he is not morally wrong. The crime is caused by the threat of force.

What about the MPC? There are a couple of differences. First, there is no immediacy requirement. Second, the threat of harm does not need to be death or serious bodily injury. Additionally, homicide charges may also be alright in the MPC. In this case, he would have had access to the duress defense under the MPC.

Duress – Murder

People v. Anderson

122 Cal. Rptr. 2d 587 (2002).

Convicted of first degree murder and kidnapping.


Can duress be an excuse for murder?


Traditional common law approach says that duress can never be an excuse for murder.


Court determines to uphold common law approach. Convictions affirmed.


The victim was victimizing others. The defendant kidnapped and killed this victim because the father of the other victims said “I will beat you” if he didn’t do what he asked.


The traditional approach was to never find duress as an excuse to murder. However, there was a statute that was provided by the legislature saying that duress is never an excuse to capital murder. At the time the statute was enacted, all murder was considered a capital offense. Since then, the degrees of murder changed. So the question shifts to, does the new statute find an excuse for murder? The court answers no by saying that because all murder was considered a capital offense, it makes sense to say that there is no duress excuse to capital offenses. Changing the degrees and capital offense sentences does not change this mindset.

The dissent disagrees by saying that there is a way to read the statute as being fine with duress. Additionally, the MPC and other jurisdictions allow duress as an excuse for murder. However, the defendant’s convictions would stand because he was not sufficiently threatened.

Additional Notes

Can duress serve as an absolute defense to murder (acquittal)?

Under common law, duress is never a defense to murder. Why? Because the statute says that all crimes except those of capital offenses can be negated by duress. However, all murders at the time were capital offenses and the intent was to stick with the murder, not the capital offense. So if the capital offense rules change, the duress rules do not.

Can duress reduce the charge from murder to a lesser crime?

Under common law, there is no definition of manslaughter that includes duress. So, he can’t go from murder to manslaughter. What about the difference between first degree to second degree murder? Well, first degree murder requires deliberation and premeditation and the jury found that those elements had been made.

What’s the biggest takeaways:

  1. Duress will never negate a murder in its entirety.
  2. Duress will never be a manslaughter.
  3. However, duress could, depending on the case, take it from first degree to second degree murder.


United States. v. Veach

455 F.3d 628 (6th Cir. 2006).

Convicted for “resisting a federal law enforcement officer [18 USC § 111(a)(1)] and threatening to assault and murder two federal law enforcement officers with intent to impede the performance of their official duties [18 § 115(a)(1)(B)].”


Did the trial judge error in refusing a voluntary intoxication defense?


A voluntary intoxication defense may be provided if it negates a specific intent crime. However, it cannot be used in a general intent crime.


Conviction for resisting arrest is affirmed but it was in error to exclude the voluntary intoxication defense for threatening to assault. That conviction is remanded for retrial.


The defendant was involved in a car accident and was examined for intoxication by the park rangers. They confirmed that he was intoxicated and attempted to arrest him. He resisted arrest causing a minor injury to one of the park rangers. On the drive to the detention center, he threatened the life of both officers involved.


Nothing in the language of §111 says anything about the intent so voluntary intoxication cannot be used as a defense in that conviction. However, §115 discusses the “intent to impede,…” which means that this is a specific intent offense. Because voluntary intoxication can be used for specific intent crimes, he is entitled to a defense on that charge. This is because intoxication negates the mens rea required to meet specific intent. However, because general intent crimes say nothing about the mens rea, there can be no defense.


Voluntary intoxication can be used as a defense for specific, but not general, intent crimes.

Additional Notes

Lets look at each crime he was charged for:

§ 111 elements:

  1. Forcibly assaults
  2. Officer or employee of the US Government
  3. While engaged in official duties

This is a general intent crime

§ 115 elements:

  1. Threaten to assault, kidnap or murder
  2. A government official or employee of the US Government
  3. With either:
    1. the intent to impede performance of duties
    2. the intent to retaliate for performance of duties

This is a specific intent crime because of the mens rea included in the state.

What are the rules for when intoxication can be a defense? Voluntary intoxication can serve as a defense to specific intent crimes only. Involuntary intoxication can be a defense to both specific and general intent crimes.

This in this case, he can use the defense only for the second charge (§115). If this is true, there is a retrial for § 115 for the jury to hear the case.

Involuntary Intoxication

There are 4 types of involuntary intoxication:

  1. Coerced intoxication
  2. Innocent mistake
  3. Unexpected intoxication – Taking a prescription and is not aware of the bodily impacts (i.e. Diabetic taking insulin without food).
  4. Pathological intoxication – When a person takes a normal amount of alcohol but unaware that it has extreme results on their body.

There is no utilitarian or retributive reason to punish a person for a crime who is involuntarily intoxicated.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.