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LITERATURE REVIEW:

Article -1

Finkelstein, Claire Oakes, "Duress: A Philosophical Account of the Defense in Law"


(1995). Faculty Scholarship ,Paper 1015.

This Article divides the deeds of a person into three different categories:

1. We accept responsibility of our deed


2. Admit that it was bad, but
3. Argue that our behavior was understandable under the circumstances and that we
should therefore not be punished.

And it argues that duress per minas belongs in this third category, and that the category
marks out a species of excuse. It is the premise of this Article, then, that the demand for a
unified treatment of a legal defense is not an excessive one to make of legal theory. The next
Part presents and explains the most commonly accepted elements of the duress defense. Part
III and IV then turn to two prevalent rationales for the defense, referring to them as the
"welfarist" and the "voluntarist" conceptions respectively. These Parts attempt to motivate the
search for an alternative conception by showing that neither rationale can form the basis for a
complete theory of duress, since both fail to account for its core elements. Part V indicates
the intellectual territory an alternative to the standard theories should occupy.

The Conclusion elaborates the Article's diagnosis of why the two standard rationales for
duress have long seemed to legal scholars to exhaust the possible store of explanations for the
defense in Anglo-American jurisprudence.

Article -2

Chan Wing Cheong, Developments in Duress: Coercion, Moral Choice and


Subjectivism, 2012 Sing. J. Legal Stud. 154 (2012).

This article talks about the various requirements which had to be satisfied before the plea of
duress could be made out. It has taken into account two different cases those are:

1. Public Prosecutor v. Ng Pen Tine


2. Public Prosecutor v. Nagaenthran a/l K Dharmalingam

And has talked about the various elements which are to be fulfilled for plea of duress as a
defense.
ELEMENTS OF DURESS

The duress defense has prevailed in the following sorts of cases:

a) An individual robs a liquor store because an aggressor credibly threatens to shoot him
and to harm his family if he does not.1
b) A man smuggles drugs from Colombia to the United States by swallowing cocaine
balloons after he is threatened with his own death and the death of his family. 2
c) A traveler participates in a robbery, which turns murderous, upon orders of the
principal assailant and threats by the same to his life.3
d) A person drives a getaway car for the I.R.A. upon threats to his life by a notorious
terrorists.4
e) A taxicab driver, threatened by a passenger armed with a gun, drives the passenger to
a bank the latter intends to rob.5

It is important to distinguish between the possible rationales for duress and the legal
requirements that are generally taken to constitute the defense.

As will become clear in the next two Parts, there is little consensus on the former, while the
case law, legislation and commentary are fairly consistent in their acceptance of the latter.
Substantive debate focuses mostly on the more marginal requirements.

The core requirements for claiming the defense are generally accepted as the following:

a) The defendant must have no reasonable opportunity to escape from the coercive
situation.6
b) The defendant must be threatened with significant harm-death or serious bodily
injury.
c) The threatened harm must be illegal.7
d) The threat must be of imminent harm.8

1
State v. Tanner, 301 S.E. 2d 160 (W. Va. 198 2)
(Defendant found guilty nonetheless because duress defense disbelieved).
2
United States v. Contento-Pachon, 723 F.2d 691 (9th Cir. 1984).
3
State v. Hunter, 740 P. 2d 559 (Kan. 1 9 87)
4
Lynch v. Director of Pub. Prosecutions, 1 All E.R. 913 (H.L. 1975 )
5
People v. Merhige, 18 0 N.W. 418 (Mich. 1920).
6
See, e.g., Pancoast v. Commonwealth, 340 S. E.2d 833 (Va. App. 1986)
(doctor who failed to take advantage of reasonable opportunity to escape barred from claiming she wrote
false prescriptions under duress).
7
United States v. Shapiro, 669 F.2d 593, 596 (9th Cir. 1982);
e) The defendant must not have placed herself voluntarily in a situation in which she
could expect to be subject to coercion, as is the case when a person joins a violent
criminal organization. 9

The two requirements which appear to have marginal status are as follows:

f) Duress must not be pleaded as a defense to murder. 10


g) The defendant must have been acting on a specific command from the coercer.11

The requirement, that the defendant have no reasonable opportunity to escape, bears on
whether the defendant was in fact confronted with the stark choice between suffering the
threatened harm and performing the illegal act. If another course of conduct was open to the
defendant, such as reporting the threat to the authorities, the defendant is obligated to pursue
that option. While this requirement bears some relation to the imminence requirement12, it is
conceptually separate from it, since it is possible for threatened harm to be imminent yet for
the defendant to have a way of avoiding the illegal act other than suffering the harm.

The requirement that the threat be of significant harm actually incorporates two separate
requirements: the condition that the defendant have received an actual threat, and the
condition that the threatened harm be of sufficient gravity. First, requiring an actual threat
rules out coercion by unusually attractive offers,such as the offer of a high-paying job to an
indigent if he carries out some illegal act.13 It also rules out threats that are merely inherent in
a situation, such as a menacing dog or the risk of an avalanche. Threatening conditions are
believed to be more appropriately raised under the category of necessity. 14 Nevertheless, an
actual threat has been found to exist when the threat was only implied by the coercer's
general behavior.15 It need not be an articulated threat. Second, courts are fairly consistent in

8
Shapiro, 669 F.2d at 596
9
Scott (defendant who joined drug-selling organization voluntarily barred from claiming duress when coerced
into torturing fellow member).
10
Courts have sometimes allowed the defense to a charge of accomplice murder, see Lynch v. Director of Pub.
Prosecutions, 1 All E.R. 913 (H.L. 1 975)
(accepting defendant's plea of duress to charge of aiding and abetting murder of police officer), or to felony-
murder, see Hunter (accepting plea to charge of felony-murder where defendant claimed he was not triggerman).
11
Viartin R. Gardner, The Defense of Necessity and the Right to Escape from Prison-A Step Tmvards
Incarceration Free from Sexual Assault, 49 S. CAL. L. REV. 110, 128-130 (i975)
12
The imminence requirement should probably be taken to apply to two different time periods if it is to satisfy
these concerns: the period in between the moment of the threat and the time of the defendant's illegal act. and
the period in between the moment of the threat and the time when the threat was to have been carried out.
13
Joshua Dressler, Exegesis of the Law of Duress: Justifying the ExntSe and Searching for its Proper Limits, 62
S. CAL. L. REV. 1 331, 1 336 (1989) ("Duress implicates threats, not offers.").
14
distinguishing defenses according to the source of the threat is ad hoc and should probably be abandoned.
15
People v. Pena, 197 Cal. Rptr. 264, 272 (Cal. App. Dep't Super. Ct. 1 983);
requiring that the threatened harm be of death or grievous bodily injury. Although the
definition of "grievous bodily injury" is vague, it appears to mean roughly injury that is life-
threatening or which seriously interfere with the victim's health and comfort.16 The
requirement is generally taken to exclude nonphysical harm, such as loss of reputation or
psychological distress.

The requirement that the threatened act be illegal rules out use of the defense when, for
example, the coercer is acting under a claim of right. But this requirement hardly requires
articulation, since threats to perform legal acts will not result in illegal conduct. A person
who threatens another with injury will not be able to claim his actions are justified if he
demands the performance of an illegal act. As discussed below, if one allows that the defense
can be claimed for responses to threats that are not themselves commanded by the coercer, it
becomes possible for a person to commit an unlawful act in response to a lawful threat. Thus
a defendant could trespass on private property to escape from a threat of bodily injury when
the threat was issued in defense of a third party. Duress should presumably not be available
as a defense to trespass in such a case.17

The requirement, that the defendant not have placed himself intentionally in a situation in
which he knew he would be subject to coercion is on somewhat shakier ground than the other
core requirements, since there is little case law on the question. It appears, however, to be
generally accepted in codifications and commentary. The Model Penal Code ("MPC")
disallows the defense in such a case, and even goes so far as to bar the defense when the
defendant was reckless or negligent in entering a situation in which he could expect to be
coerced, when recklessness or negligence respectively are sufficient mens rea for the
offense.18 The general point of the requirement is clear: individuals should be excused from
bad acts only when they are in fact blameless with respect to those acts. A person who
intentionally enters a coercive situation is not free from blame when he performs a criminal
act under threat. In addition, the requirement serves an obvious deterrence function, since it
may dissuade individuals from joining organizations they foresee will pressure them to
commit illegal acts.

Regina v. Valderrama-Vega, 1 985 Crim. App. 220.


16
Wellar v. People, 30 Mich. 1 6,20 ( 1874).
17
See generally Herbert Fingarette, Victimization: A Legalist Analysis of Coercion, Deception, Undu
Influence, and Excusable Prison Escape, 42 WASH. & LEE L. REV. 65, 79
18
MODEL PENAL CODE § 2.09(2) (1980)
The requirement, requiring that the act be commanded by the coercer should make the
defense inapplicable where the defendant undertakes a method of avoiding the threatened
harm on his own initiative. The typical case is one in which the defendant escapes from
prison following threats of death, imminent bodily harm, or sexual abuse and the prison
guards are unreliable as a source of succor.19 But the jurisdictions that do allow a defense in
this situation are divided over whether the correct defense is duress or necessity.20

As the above discussion demonstrates, there has been a fairly consistent approach to actual
cases involving the duress defense, and commentators generally agree that the core elements
of the defense should be retained. Despite the clarity of application, however, there is little
consensus on the reason for allowing a defense with these requirements.

19
Where courts have allowed the defense in such cases, the defendant must turn himself over to the authorities
upon reaching a position of safety.
United States v. Bailey, 444 U.S. 394 (1980)
20
Compare People v. Lovercamp, 118 Cal. Rptr . 110 (Ct. App. 1974) (allowing the defense of necessity
against prosecution for prison escape when defendant threatened with imminent homosexual attack) with People
v. Hannon, 220 N.W.2d 212 (Mich. App. 1974) (accepting duress as a defense to prison escape).
LITERATURE REVIEW
Article 1

Citation: Russell Shankland, Duress and Underlying felony, vol 99, Journal of Criminal
Law and Criminology

Six states prohibit the duress defense for all murder, felony murder included Seven states bar
the defense for murder generally, but make an exception for felony murder if the duress
excuses the defendant's participation in the underlying felony. Two states treat duress as a
defense for all cases of murder. This article discusses about the background of felony-murder
rule and the duress defence. It concludes that duress defense should also excuse a coerced
actor from the liability for felony murder. Furthermore, courts in those states who have
codified into statute the common law prohibition of the duress defense for all murder, should
interpret their statutes to allow the defence by distinguishing felony murder from
premeditated murder.

Article 2

Citation : sarah J Heim, the applicability of the duress defence to the killing of innocent
persons by civilians, vol 46, Cornell International Law Journal.

This article discusses about the defendants plea where they have raised the issue regarding
duress as a defense to charges of war crimes and crimes against humanity since the
Nuremburg Trials. This note argues that international criminals courts should allow civilians
to raise a defense of duress against war crime charges or charges against humanity.

First part of the article examines the general jurisprudence of the defence of duress, including
differences among common and civil countries and current customary international law. The
second part focuses on the ICTY’s opinion in the Erdomovic case. The third part proposes a
new international standard for the defence of duress. The fourth part applies these standards
to historical situations in which the civilians could have raised duress as a defense.
DURESS : AS A DEFENCE AND DURESS : AS NOT A DEFENCE
Duress can serve as a defense to felony murder if the duress negates the defendant's
culpability for the underlying felony.

Three approaches to duress as a defence :

1. the Maryland approach

Maryland is one of the seven states that denies duress as a defence for murder generally but
allows it for certain special case of felony murder.21

In McMillan Vs. State, Maryland Court of Special Appeals did not approve of McMillan’s
request for a jury instruction as to duress. Two men recruited the appellant to assist them in a
home invasion against to the appellant’s wishes and killed the man subsequently. Held that a
defendant can rely on duress only when the crime did not involve the taking away of an
innocent life. Hence, the Jury convicted McMillan of murder and sentenced him to life
imprisonment.

The Maryland Court of Special Appeals concluded that where duress would serve as a
defense to a felony murder , it can also be available as a defense to a felony-murder arising
from that felony. Later, the state started granting duress as defense in all future cases but only
for felony murder cases.

Kansas duress statute makes a defendant not guilty of a crime committed under “threat of
imminent infliction of death or great bodily harm” but allows the defense only for crimes
“other than murder or voluntary manslaughter”. Prohibition on defence extends to “crimes of
intentional killing and not to killings done by another during the commission of some lesser
felony.”

Duress allowed as a defence:

1. Defendant poked with a bat on his face by his coercer and ordered to search pockets
of a man whom he had beaten senseless with the bat. The man later died.

2. Illinois Appeals Court reversed the felony murder conviction of a fifteen year old boy
who participated , at gunpoint , in a barroom robbery. Co-felon shot dead a patron in this
case.

2. the Michigan approach

It sided with the six states that have affirmatively ruled that duress can never serve as a
defence to felony murder.

Missouri duress statute allows defense where an actor engages in the proascribed conduct
because he is coerced to do so, by the use of, or threatened imminent use of ,unlawful
physical force.

21
Russell Shankland, Duress and Underlying felony, 99 Journal of Criminal Law and Criminology, 1229 (2009)
Washington duress statute ays actor may rely upon the duress defence if faced with a threat
that created a reasonable apprehension of fear of “imminent death or immediate grievous
bodily injury”. And where the actor is charged with “murder, manslaughter or homicide by
abuse,” the defense is unavailable.

Arizona duress statute says an actor’s otherwise illegal conduct is justified if a “reasonable
person would believe that he was compelled to engage in it by a threat or use of immediate
physical force.” A later subsection declares the defense “unavailable for offenses involving
homicide or serious physical injury.”

Indiana duress statute says an actor “compelled to engage in prohibited conduct by threat of
imminent serious bodily injury” qualifies for the dures defense. If charged with a felony
offense against the person, defendant loses access to the defense. Such offenses include
homicide, battery, kidnapping, confinement, human trafficking, sex crimes, and robbery.

Duress not allowed as a defense in the following cases:

1. defendant, a prostitute leads a customer to a park where her boyfriend robs him and
unexpectedly stabs him to death.

2. defendant and two hitchhikers got a lift and later robbed the driver, stabbed him with a
screwdriver thirty to forty times when he tried to resist.

3. defendant convicted for felony murder for a murder committed by his co-felon during a
robbery.

4. defendant forced at gunpoint to rob pizza delivery guy who was killed by a co-felon
subsequently.

3. the Arkansas and Delaware approach

It allows duress as a defence to all forms of murder, felony murder included.

Rationales supporting duress as defence: fairness, deterrence, choice of evils. Punishing a


coerced actor violates standards of fairness and also it cannot deter them. Reasonable conduct
although wrongful not blameworthy and to punish non blameworthy conduct is unjust. The
coercer participates to avoid the greater harm i.e. putting himself at harm’s way. He
participates because he wanted to avoid the harm, not because his crime outweighed the risk
of punishment.

Duress is called a “choice of evils” theory. According to choice of evils theory, when an
individual faces two types of evils, society demands he commit the lesser evil and avoid the
greater harm. And the society supports the individual’s stand in choosing the lesser harm.
When a coerced actor kills, resulting harm- the death of an innocent person is at least as great
as the threatened harm- the death of the actor. Here Blackstone says “……the actor ought
rather to die himself than escape by the murder of innocent”.22

If duress is granted as a defence, it will undo other offences like treason as in D Acquina vs
US. On the other hand, murder once committed is irreparable. And the coerced actor faces a
threat, not a certainty. By discouraging compliance, both the third party and the coerced actor
may survive.

Request for jury instruction rejected by Nebraska Supreme Court in State vs Perkins. Only
Kansas had codified the prohibition into statute. Other six states had incorporated the ban
through case law.

Supreme Court of Kansas in State vs Hunter studied both Missouri and Arizona approaches
instead vouched to follow the Okhlahoma approach of duress as a defence for all murders.
Courts of states following this approach did not distinguish felony murder from intentional
killing because felony murder derives its intent to kill from intent to participate in the
underlying felony. Kansas Supreme Court confines its limitation to crimes of intentional
killing and not killings done by another during the commission of some lesser felony.

Death penalty for coerced actor:

1. Getaway driver sentenced to death penalty who participated in a robbery that turned
fatal.23

22
Guyora Binder, The Origins of American Felony Murder Rules, 57 STAN. L. REV. 59, 95-96 (2004)
23
Enmund vs Florida, 458 U.S. 782 (1982)
DISTINCTION BETWEEN DURESS AND COERSION.

COERCION DURESS

1) Meaning: 1) Meaning:

Coercion is a process by which consent is Duress, under Common Law, consists in


obtained by threatening to commit an act actual violence or threat of violence to a
punishable under the Indian Penal Code person. It includes doing an illegal act against
1860. It means making a person to give his a person, whether it is to be crime or tort.
consent by force or threat. Section 15 of the Duress is not confined to unlawful acts
Indian Contract Act 1872 defines coercion as Forbidden by any specific penal law, like the
"the committing or threatening to commit Indian penal code in India.
any act Forbidden by Indian penal code
1872, or the unlawful detaining or
threatening to detain, any property to the
prejudice of any person whatever the with
the intention of causing any person to enter
into an agreement".

2) In India coercion can also be there by


2) In England, duress is constituted by
detaining or threatening to detain any
acts or threats against any person of a
property.
man and not against his property.
3) In India, Coercion may proceed from
3) In England, duress should proceed
a person who is not a party to the
from a party to the contract and is also
contract, and it may also be directed
directed against the party to the
against a person who again, maybe a
contract himself, or his wife, parent,
stranger to the contract.
child or other near relatives.
4) Immediate violence subsequent to
4) Duress must be such that it causes
coercion is not an essential element.
immediate violence.

In DPP for Northern Ireland v Lynch24 The appellant was ordered to drive a car. The
appellant did not know them personally but knew of his reputation. He knew that he would be
shot if he did not comply. Three armed men in combats and balaclavas got into the car and
the appellant drove them as directed. The three men then shot and killed a policeman. The

24
DPP v. lynch (1975) ALL ER, 913-per house of lords.
appellant was convicted of murder, the trial judge having ruled that the defence of duress was
not available in the circumstances. The Court of Appeal dismissed the appeal and the
defendant appealed to the House of Lords. It was held that the Appeal allowed The defence
of duress is available to a participant to murder who does not personally do the act of killing.

In R v. Sharp25 the appellant joined a gang who carried out armed robberies. He then wished
to leave but was threatened with serious violence if he did so. He took part in the robbery
where a post master was killed he was convicted of murder and his appeal was dismissed.

“ when a person voluntarily and with knowledge of its nature joined a criminal act which he
knew would bring presuure on him to commit an offence and was active member when put
under such pressure, he cannot ṭake the defence of duress”.

25
(1987) 3 All E R 103 C A
LITERATURE REVIEW
ARTICLE 1

Sir William Blackstone, one of the greatest of writers on English law, had this to say:

"Another species of compulsion is what our law calls duress per minas; or threats and
menaces which induce a fear of death or other bodily harm and which take away for that
reason the guilt of many crimes and misdemeanours; at least before the human tribunal. The
society does not excuse: a natural offences, so declared by the law of God, wherein human
magistrates are only the executioners of divine punishment, and therefore, though a man be
violently assaulted, and had no other possible means of escaping death, but by killing an
innocent person: and force shall not acquit him of murder; for he ought rather to die
himself”26

"coercion" is the term used in referring to compulsion to criminal acts by a person against any
stranger. That a he should be entitled to a defence of coercion to a charge' of any offence
except treason or murder, conspiracy and incitement to murder and attempted murder if he is
able to point to evidence in support of such a defence and that in such a case the onus should
be on the prosecution to satisfy a jury or court.27

ARTICLE 2

In D'Aquino v. U. S., the defendant was indicted for treason. The alleged treasonable conduct
was broadcasting, in Japan, with intent to aid the enemies of the United States. One of the
defenses was duress per minas, or compulsion by threats, which the court referred to
variously as coercion, compulsion.

The general rule is that duress is a defense only where the evil threatened is "present,
imminent and impending." It is said that this rule is grounded on sound reason and
enlightened justice, and a contrary rule would be monstrous and unjust. An analogue is found
in the law of self-defense. "If the right of self-defense and forcible resistance against an
aggressor exists only in the presence of imminent danger or when an offense is about to be
committed, it would be an anomalous condition of the law that would justify or excuse the
commission of a felony against the person or property of an entirely innocent person because
the person doing the deed had reason to fear and did fear, not an imminent and immediate
danger.28

26
2 Blackstone, Commentaries on the Laws of England" (1769) IV 10
27
Duress coercion and necessity, NCJRS,pg.8,(pg.1-27) (1978)
28
Walter H. Hitchler, Criminal Law - Duress Per Minas, 56
Dick. L. Rev. 361 (1951)
CLASSIFICATION OF DURESS

1.When Act Committed under Pain of Death-

An act which would constitute a crime if voluntarily done is innocent, if it is done in


pursuance of the demand of another, and under the pain of instant death, should compliance
with the demand be refused. The duress must continue up to the very time of the doing of the
act, and it seems that duress is no defence to the crime unless the impending penalty for a
refusal to commit it is death.

 Where a threat was made to take a person's life unless he assisted in the commission
of a contemplated murder, and three days elapsed after such threat was made and
before the murder was perpetrated, such threat was held to be no defence29.

2. When Act Done under Mere Command of Superior –

a) IN GENERAL. - The fact that the act is done under the command of one to whom
the actor owes obedience will not suffice to excuse the commission of a crime, unless
committed under such duress as would be a defence to crime in other cases. This rule,
with possibly one exception, hereafter indicated, is necessarily of universal
application.
b) UNDER ORDER OF MILITARY COMMANDER. - Thus, the command of a
military officer to a subordinate will not excuse the latter for the performance of a
criminal act.

Subordinate Must Obey Only Lawful Order of Superior. - The law for the better
government of the United States navy, which enjoins on inferior officers and privates the
duty of obedience to their superiors, means only obedience to the lawful orders of the
superiors. Hence, the participation of a subordinate in an act of piracy at high sea under the
command of his superior is inexcusable30.

An officer who unlawfully makes a seizure of private property cannot justify his trespass by
showing the orders of his superior officer. An order to commit a trespass can afford no
justification to the person by whom it is committed.31

29
People v. Repke, 103 Mich. 459.
30
U. S. v. Jones 3 Wash. (U. S.) 209
31
Mitchell v. Harmony, 13 How. (U. S.) 115
Although the subordinate military officer must obey all lawful commands of his superior, yet
an illegal act cannot be justified by an order from such superior, no matter how high the
source from which the order emanates; on the contrary, it is his duty to disobey such order.32

Where there is insurrection and civil war in one state of the Union, she has no authority to
give orders to her troops to pass over her lines into the territory of a sister state to protect
herself against insurgents, and to capture her rebel citizens who have recently fled over those
lines; and where such orders are given, they cannot shield the citizens or soldiers from being
criminally responsible in the courts of the sister state for there seizing such insurgents,
although such citizens or soldiers, in obeying such orders, are subject to martial law in their
own state. 33

Where United States Officer Acts Against State Law.- A deputy United States marshal
was directed by his superior to arrest everyone engaged in stealing, concealing, or preventing
the delivery of any government property in any county of the state. Such officer could not,
without legal process under the laws of Indiana, arrest a citizen upon suspicion.34

Civil Liability of Subordinate for Tort Committed by Him. - Where a Confederate soldier
in company with other soldiers took a horse out of the plaintiff's lot and carried him away,
and the circumstances were not such as to show the existence of actual duress, the soldier
who took the horse was held liable in' tort for the value thereof. 35

c) UNDER ORDER OF MASTER OR PRINCIPAL.

The fact that a servant acts under the command of his master, or an agent under that of his
principal, in the commission of an illegal act, is no defence.' Thus, where a hired servant or
bartender sells liquor under the direction of his principal without a license, or conducts a
gambling house, or sells lottery tickets against the law, he is as guilty as is his master or
principal. Or, where the mate of a ship acts under the order of the master in committing a
crime, such fact is no defence." 36

d) UNDER ORDER OF PARENT. - The command of a parent to a child will not justify a
criminal act done in pursuance of it.

32
State v. Sparks, 27 Tex. 627
33
Com. v. Blodgett, 12 Met. (Mass.) 56
34
Skeen v. Monkeimer, 21 Ind. I
35
Weatherspoon v. Woodey, 5 Coldw. (Tenn.) 149.
36
State v. Sutton, 1o R. I. 159.
3.When Crime Committed by Child under Fourteen. -In a case where a conviction was
sought upon the uncorroborated testimony of a child thirteen years of age, who assisted in the
commission of a felony under the threats and coercion of another (it not appearing from the
opinion of what those threats consisted), the court held that he was not incompetent, and that,
therefore, the corroboration of his testimony was unnecessary37.

4.An Act of High Treason. - Enlisting or procuring the enlistment of another in the service
of a country with which the United States is at war is an act of high treason. Nothing will
excuse such an act except the fear of death38.

Exception to General Rule –

When Wife Acts under Command of Husband. - There is one notable exception to the
general rule as stated above in this subsection. The rule of the common law is that where a
wife commits a crime, unless it be of an exceptional nature, in the actual or constructive
presence of her husband, and under his direction or at his command, her coercion is to be
presumed. The artificiality of this old common-law presumption has been recognized, and in
many of the states exceptions have been engrafted on it, either by the courts or by the
legislatures. Its treatment here, therefore, would involve many considerations outside of the
proper scope of this subject, and reference is made to the title under which its treatment
would properly fall.39

The heinousness of the offense when the crimes of either treason or murder, and probably
robbery, have been committed by the wife, is so great that the usual presumption of coercion
will not be indulged. In such cases the wife must affirmatively show such duress in her case
as would excuse the commission of such a crime by another40.

37
People v. Miller, 66 Cal. 468.
38
Respublica v. M'Carty, 2 Dall. (Pa.) 86.
39
Levy v. Burkle, (Cal. 1887) 14 Pac. Rep. 564.
40
Bish. New Crim. Law (8th ed.), 358.
LITERATURE REVEIW

ARTICLE-1: ACTING UNDER DURESS

Canadian Journal of Philosophy,

In this article the author Brenda Baker, mainly concentrated about the analysis of duress and
had given the preceding discussion, one might prefer the following analysis of acting under
duress. Actions done under duress are those actions done by individuals

(1) who have been threatened with harm or other ills in the event of their non-performance of
some prima facie undesirable action,

(2) who believe that the threats will be implemented in the event of non-performance,

(3) who unwillingly do the prima facie undesirable action, and

41
(4) for whom the threatened harm was a decisive reason for their doing the action.

ARTICLE -2: DURESS AS A CRIMINAL DEFENSE

American and English Encyclopaedia of Law

The author lomax pittman, mainly concentrated on the classification of the duress and its
areas where the duress must be imposed and its effects. And also the defences of the duress
and when it is voidable, here it also speaks about the duress of the person and persons
criminal liability. When it comes to criminal liability if duress can be taken as a defence there
must be certain provisions that are to be satisfied then only duress can be taken as a defence,
in this article it defines the criminal defence of duress. 42

41
Canadian Journal of Philosophy, Vol. 3, No. 4 (Jun., 1974), pp. 515-523
42
David S., et al., Editors Garland. American and English Encyclopaedia of Law (2)

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