About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

30 S. Cal. L. Rev. 313 (1956-1957)
Duress, Free Will and the Criminal Law

handle is hein.journals/scal30 and id is 321 raw text is: 19571

Lawrence Newman* and Lawrence Weitzer**
Legal responsibility, be it civil or criminal, implies freedom. To make
a contract in law requires the free acts of the participants, and the doing
of a socially reprehensible act is legally excusable, where the actor was not
a free agent. We find, therefore, that where that most precious of all com-
modities, free will, is stolen, the law has hastened to erect its doctrine
of duress to mark the larceny.
Criminal duress has, at its heart, the principle of freedom. The criminal
law, wisely or not, has postulated for itself a world of free-willed agents
and has fixed responsibility for action upon most classes of actors,' except
those who have acted under compulsion.
The merits of such an attitude are clear. If a person commits an act
under compulsion, responsibility for the act cannot be ascribed to him
since, in effect, it was not his own desire, or motivation, or will, which
led to the act. Punishment of the actor would be misdirected and futile
since it would deter neither him nor others, should it be the case that all
were equally compelled to do acts outside of their own control. Thus, the
law has reasoned that where it can be shown that a man acted under a
compulsion which deprived him of his free will, such an individual
would not be held responsible for his act. This, in essence, is the thinking
that lies behind the formulation of the criminal duress doctrine.
Having determined upon the duress principle, the law did not find it
difficult to identify those series of human movements which would be
subject to this defense. Treason, murder, rape, robbery, kidnapping, arson,
bigamy, forgery, assault and battery, perjury-these were proof that
society was not lacking in imagination or complexity. The virtue of maid-
enhood, the sanctity of person, group and property, the reverence for
*A.B., 1952, Dartmouth College; LL.B., 1955, Yale University. Clerk to Judge Lawrence
E. Walsh, U. S. District Court, Southern District, New York.
**B.A., 1952, Brooklyn College; LLB. 1955, Yale University.
'The law does not hold insane persons or those under a certain age responsible for their
acts. A Minnesota statute declares that the presumption of responsibility includes all indi-
viduals except, (1) children under seven years of age, (2) idiots, imbeciles, lunatics and
insane persons who are incapable. MINN. STAT. § 610.08 (1953). A California statute adds
all persons are capable of committing crimes except those belonging to the following classes:
(1) children under 14, in the absence of dear proof that at the time of the act charged they
knew its wrongfulness, (2) idiots, (3) lunatics and insane persons, (4) persons who com-
mitted the act or made the omission charged under an ignorance or mistake of fact, which
disproves criminal intent, (5) persons acting without being conscious thereof, (6) persons
acting through misfortune or accident where there is no evil design, intention or culpable
negligence, (7) married women (except for felonies) acting under threats, commands or
coercion of their hubsands. CAL. PENAL CODE § 26 (1956). Cf. FLA. STAT. ANN. § 836-05
(1944); IDAHO CODE §§ 18-201 (1947); ILL. REV. STAT. §§ 500-595 (1949); MONT.
REv. CODES ANN. §§ 94-201 (1947); N.J. REv. STAT. tit. 2, § 2:103-3 (1937); N.Y.
PENAL CODE §859 (1944); OKLA. STAT. ANN. tit. 21, §152(7), §155 (1937); R.I. GEN.
LAWS ANN. c. 606, §17 (1938).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most