It is an affirmative defense to a criminal prosecution that the defendant engaged in the alleged conduct because the defendant was coerced to do so by a third party through the use or the threat of use of force against the defendant’s person or the person of another, which a reasonable person in the defendant’s situation would have been unable to resist. This rule recognizes that a person should not be held criminally responsible for a crime when forced to commit it under circumstances in which a reasonable person would have been unable to resist the compulsion to do 49 This defense is unavailable, however, if the defendant intentionally or recklessly placed himself or herself in a situation in which it was probable that the defendant would be subjected to duress.50 The defense does not apply when a woman claims to have acted on the command of her husband, unless such command was accompanied by the use or the threat of use of physical force.51
In evaluating a duress defense, a jury may consider the immediacy of the threat; the explicitness of the threat; the nature of the physical injury threatened; the time when the threat is to be carried out; the ability to escape from the coercer; and the coercer’s presence, or absence at the time of the commission of the crime. The trier of fact evaluates the factual circumstances relating to the force or threat of force objectively using a reasonable person standard. The statute requires the defendant to prove by a preponderance of the evidence that a reasonable person would have been unable to resist the force or threat of force made.51.1
49. 11 Del. C. § 431(a) & commentary. See also Wonnum v. State, 942 A.2d 569, 572 (Del. 2007); Feliciano v. State, 332 A.2d 148, 149 (Del. 1975) (the provision contemplates coercion by a non-party, that is, a non-victim).
50. 11 Del. C. § 431(b).
51. 11 Del. C. § 431(c).
51.1. Wonnum v. State, 942 A.2d 569, 572 (Del. 2007).
© 2010 David L. Finger