2.7-3 Duress -- § 53a-14
Revised to June 13, 2008
The evidence in this case raises the defense of duress. The defense of duress applies to the charge[s] of <insert applicable crimes> [and the lesser included offense[s] of <insert lesser included offenses>.]
After you have considered all of the evidence in this case, if you find that the state has proved beyond a reasonable doubt each element of <insert applicable crimes and any lesser-included offenses>, you must go on to consider whether or not the defendant acted under duress. In this case you must consider this defense in connection with count[s] __ of the information.
A person's actions that would otherwise be illegal are legally justified if (he/she) is acting under duress. It is a complete defense to certain crimes, including <insert applicable crimes and any lesser-included offenses>. When, as in this case, evidence of duress is introduced at trial, the state must not only prove beyond a reasonable doubt all the elements of the crime charged to obtain a conviction, but must also disprove beyond a reasonable doubt that the defendant acted under duress.1 If the state fails to disprove beyond a reasonable doubt that the defendant acted under duress, you must find the defendant not guilty of <insert applicable crimes> despite the fact that you have found the elements of (that crime / those crimes) proved beyond a reasonable doubt. The defendant has no burden of proof whatsoever with respect to this defense.
The statute defining duress reads in pertinent part as follows:
in any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because (he/she) was coerced by the use or threatened imminent use of physical force upon (him/her) or a third person, which force or threatened force a person of reasonable firmness in (his/her) situation would have been unable to resist.
The first thing you must determine is whether the defendant (intentionally / recklessly) placed (himself / herself) in a situation in which it was probable that (he/she) would be subjected to duress. <See Intent: General, Instruction 2.3-1, and Recklessness, Instruction 2.3-4.> If you find that the state has proved beyond a reasonable doubt that the defendant (intentionally / recklessly) placed (himself/herself) in such a situation, then (he/she) cannot claim that (he/she) acted under duress, and you need not consider the defense. If you find that the state has not proved that the defendant (intentionally / recklessly) placed (himself / herself) in a situation in which it was probable that (he/she) would be subjected to duress, then you should go on to consider whether the defendant acted under duress.
The state must disprove at least one of the following elements to disprove the claim of duress.
Element 1 - Coercion
The first element is that the defendant was being coerced to act by the use or threat to use imminent physical force against (him/her/another person) by <insert name of other person>.
The word "using" has its ordinary meaning, that is, the other person has already begun to use force. The word "imminent" means that the person is about to use physical force at that time. It does not encompass the possibility that an act of physical force may take place at some unspecified future time.
The defendant must have actually believed in and been frightened by the likelihood of the threatened harm. If there was a reasonable, legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm, you must find that the defendant was not under duress.2 If the defendant would have engaged in the criminal activity whether or not there was a threat, then (his/her) actions were not caused by that threat.
Element 2 - Reasonableness of
The second element is that the defendant's conduct was reasonable under the circumstances in that a person of reasonable firmness under the same circumstances would have been unable to resist the force or threatened force and would have acted as the defendant did. In assessing the situation you may consider tangible factors that differentiate the defendant from the person making the threat, such as size, strength, age, or health. You should also consider such things as the seriousness of the threat, the nature of the impending harm being threatened, the opportunities for escape, and the seriousness of the crime the defendant has committed.
In evaluating the defendant's response to the threat, applying the standard of the "person of reasonable firmness," consider an ordinary person without serious mental and emotional defects. A defendant's personal timidity or lack of firmness in the face of intimidation does not serve as the measure for his or her conduct under this second component of the defense. Community expectations prevail in judging a defendant's response to a threat when that response involves engaging in criminal action. With the defense of duress, a defendant is neither held to a standard of heroism, nor is the defendant allowed to rely on his or her idiosyncratic mental and emotional weaknesses.3
If you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements of <insert applicable crimes>, you shall then find the defendant not guilty and not consider the defense.
If you unanimously find that all the elements of <insert applicable crimes and any lesser included offenses> have been proved beyond a reasonable doubt, you shall then consider the defense of duress. If you unanimously find that the state has disproved beyond a reasonable doubt at least one of the elements of the defense or has proved that the defendant (intentionally/recklessly) put (himself/herself) in the situation, you must reject that defense and find the defendant guilty.
If, on the other hand, you unanimously
find that the state has not disproved beyond a reasonable doubt at least one of
the elements of the defense, or has not proved that the defendant
(intentionally/recklessly) put (himself/herself) in the situation, then on the strength of
that defense alone you must find the defendant not guilty of <insert
applicable crimes> despite the fact that you have found the elements of
(that crime / those crimes) proved beyond a reasonable doubt [and not consider
any of the lesser-included offenses].
1 State v. Fuller, 199 Conn. 273, 280 (1986); State v. Rouleau, 204 Conn. 240, 255 (1987); General Statutes § 53a-12 (a).
2 United States v. Bailey, 444 U.S. 394, 410, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980); State v. Boone, 15 Conn. App. 34, 40-41, cert. denied, 209 Conn. 811 (1988).
3 See State v. Heinemann, 282 Conn. 281, 303 (2007) (discussing the objective reasonableness of the defense).
To be entitled, as a matter of law, to a jury instruction on this defense, the defendant must assert the defense and present some evidence on it. See State v. Rosado, 178 Conn. 704, 707-08 (1979). The defense is not available for a charge of carrying a pistol without a permit. State v. Hopes, 26 Conn. App. 367, 371-72, cert. denied, 221 Conn. 915 (1992).
Duress does not negate the specific intent of the criminal conduct. State v. Aponte, 66 Conn. App. 429, 434 n.6 (2001), cert. denied, 259 Conn. 970 (2002).
"Connecticut's duress defense has both a subjective and an objective component. The subjective component is that the defendant actually must have been coerced into the criminal action. . . . "[T]he defendant in fact must have believed that his life would be endangered if he did not perform the criminal act at issue." State v. Heinemann, 282 Conn. 281, 301-302 (2007). "The second component of the defense is objective in nature. If the defendant can establish that he was in fact in fear, his conduct is then judged by an objective standard. . . . A defendant's level of resistance must meet community standards of reasonableness. In other words, the jury must conclude that the defendant's belief was a reasonable one." Id., 302.
"[A]lthough the factors considered
in determining the defendant's situation, i.e, those that differentiate him from
his coercer, such as size, strength, age or health, are somewhat individualized,
they do not stand in isolation. Rather, they are to be gauged against the
coercer in order to determine whether the defendant acted reasonably and
therefore justifiably. Consequently, the trier of fact must consider any
salient situational factors surrounding the defendant at the time of the alleged
duress, including the severity of the offense the defendant was asked to commit,
the nature of the force used or threatened to be used, and the alternative ways
in which the defendant may have averted the force or threatened force." Id.,
305-306. The Court rejected the defendant's argument in Heinemann that
adolescents, because of their heightened vulnerability to social pressure and
immature decision-making abilities, are entitled to a special instruction
allowing the jury to factor their youth into the defense.