MBE Question of the Day – Answer

(A) is correct.
Issue: For what crimes can duress be used as a defense.
Rule: Duress holds that a person is not guilty of a criminal offense if (i) a threat produces in the defendant (ii) a reasonable fear (iii) of immediate or imminent (iv) death or serious bodily injury (v) to herself or to a third person (if there’s a close personal relationship). The rationale for this defense is that the defendant violated the criminal law to avoid the greater harm threatened. Hence, duress is not available as a defense to homicide because no threat is of a greater harm than death. The following are not included within the duress defense: (a) Threats of future harm or death; (b) Threats of non-serious bodily injury; or (c) Unreasonable fear of death or serious bodily injury; and (d) Threats to property. While duress is no defense to the intentional taking of a life by the threatened person, one does not lose the defense of duress if in the commission of the felony, another is unintentionally killed.
Analysis: Here, the man was under duress as the attacker threatened to kill both the man and the man’s mother unless the man robbed the convenience store. While the man’s actions satisfy the elements of felony murder (the clerk’s death was during the commission of the felony and was a foreseeable result of the felony), here the charge is not applicable because the man was operating under an unlawful threat which reasonably caused them to believe the only way to avoid imminent death to himself and his mother was the commission of the crime. The defense of duress is not lost if the murder is a felony murder that is not an intentional killing by the subject of the duress. Thus, the man is guilty of no crime. (A) is correct because the man has the excuse of duress under these facts. He committed the crime in order to avoid a greater harm – the murder of his mother and himself – and the death of the clerk was an unintended consequence for which, though foreseeable, the man will not be held responsible. (B) is incorrect because the man’s defense of duress will absolve him of liability for felony murder. (C) is incorrect because involuntary manslaughter is the unintended homicide that is the result of either criminal negligence or misdemeanor manslaughter. The man committed a felony, nor a misdemeanor, and there is no criminal negligence under these facts. Remember, criminal negligence requires a gross deviation from the reasonable person standard – i.e., gross negligence or recklessness. Here, the man’s acts were intentional, not negligent or reckless. And to the extent his acts could be considered reckless, he has the excuse of duress. (D) is incorrect because while the man did commit a robbery, he has the excuse of duress and will not be found guilty of the robbery.