Implied Fortitude: California's Defense of Duress
![handle is hein.journals/pepplr6 and id is 181 raw text is: Implied Fortitude: California's Defense of Duress
I. INTRODUCTION
This article will examine the development and present require-
ments of the defense of duress in California. When one person
threatens another with immediate injury if that person does not
commit a certain crime, the person acting pursuant to the threat
is said to be acting under duress. The defense of duress is not a
recent development of the law' but has been recognized since an-
tiquity as an excuse for conduct which would otherwise be crimi-
nal, providing that the particular requirements of the forum
jurisdiction have been met.2 Lord Bacon, an early proponent of
the defense of duress, felt that when an actor was put in the situ-
ation of having to make a choice between two evils, that circum-
stance should carry a privilege in itself.3
The underlying principle supporting the defense of duress is
that criminal liability must not be visited on the blameless. If a
person commits an act under the duress of threatened violence,
responsibility for the act cannot be ascribed to him, since in ef-
fect, it was not his own desire, or motivation, or will, which led to
1. 2 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 105 (1883).
2. L. Newman & L. Weitzer, Duress, Free Will, and the Criminal Law, 30 S.
CAL. L. REV. 313, 314 (1957) [Hereinafter cited as Newman & Weitzer].
If duress was to excuse it had to be shown that the compulsion was in
its nature such as would induce a well grounded apprehension of death or
serious bodily harm. The compulsion had to arise without the negligence
or fault of the person claiming aid from the doctrine, and the compulsion
had to be instant, present, imminent and impending. The force com-
plained of by the victim must have lasted during the whole time required
for the performance of the criminal act. The duressed had to show
resistance to the point of death (or at least to the instant of serious and
grievous bodily harm) before he capitulated and acted. The force had to
be exerted, if not on the victim, then on someone close to the victim, such
as a wife or child. The duressed had to avail himself of any opportunity
to avoid or escape from the force.
3. The law chargeth no man with default where the act is compulsory
and not voluntary, and where there is not a consent and election: and
therefore, if either there be an impossibility for a man to do otherwise, or
so great a perturbation of the judgment and reason as in presumption of
law man's nature cannot overcome, such necessity carrieth a privilege in
itself.
LORD FRANcIS BACON, THE WORKS OF FRANcIs BACON 343 (Shedding, Ellis & Heath
1859).](ViewImageLocal?handle=hein.journals/pepplr6&div=12&collection=&method=preview&ext=.png&size=3)
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Implied Fortitude: California's Defense of Duress
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