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Criminal Law

Should the "Duress" Defense Be Available in Cases of Extremely Reckless Homicide?


From Michigan Supreme Court Justice Bridget McCormack's majority opinion (for four of the seven Justices) delivered Thursday in People v. Gafken:

[W]hile fleeing from police, Theresa Gafken ran a red light at speeds topping 100 miles per hour and collided with other vehicles, killing one person and causing severe injuries to several others; Gafken was also injured. The prosecution charged her with second-degree murder, and two counts of operating a vehicle while intoxicated (OWI) causing serious impairment of a body function.

Before trial, Gafken moved to allow certain testimony. Specifically, she asked to be allowed to testify that she intended to pull over when the police officer activated his overheard [sic] lights and that she didn't do so because Michael Scandalito, who was sitting behind her, then thrust a gun into her ribs and threatened to kill her if she stopped the car. She also wanted to testify that Scandalito was on parole and being sought for a parole-violation warrant and had committed aggravated assault against his mother while in a methamphetamine rage….

The majority held that the testimony should have been admitted, and Gafken should have been able to use the duress defense based on that testimony. Here's the heart of the short majority opinion, though there is also an interesting and much more detailed concurrence, plus three detailed dissents.

"The elements of second-degree murder are: (1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse." Malice may be established in three ways: by showing (1) the intent to kill, (2) the intent to cause great bodily harm, or (3) the intent to do an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm…. The prosecution charged Gafken only under the third theory of malice, commonly referred to as depraved-heart murder.

"Duress is a common-law affirmative defense." … "The rationale of the defense of duress is that, for reasons of social policy, it is better that the defendant, faced with a choice of evils, choose to do the lesser evil (violate the criminal law) in order to avoid the greater evil threatened by the other person." …

"[H]istorically, duress was not permitted as an affirmative defense to murder." [In the words of] Lord Matthew Hale and William Blackstone, "[T]hough a man be violently assaulted, and hath no other possible means of escaping death, but by killing an innocent person; this fear and force shall not acquit him of murder; for he ought rather to die himself, than escape by the murder of an innocent."' … The rationale for the no-duress-defense-for-murder rule is … absent when depraved-heart murder is charged. Depraved-heart murder does not present the choice between sparing one's own life or taking the life of an innocent. It is not kill or be killed. Rather, the choice presented here is …: lose one's life or commit a lesser felony than intentional murder (here, reckless driving and fleeing from law enforcement).

Although it has often been repeated that duress is not a defense to "homicide" or "murder," we have recognized that this is an overly broad statement of the rule. Instead, the no-duress-defense-for-murder rule has been limited to cases of intentional murder historically.

To be sure, some authority from other jurisdictions sounds in a broad rule—that duress is not a defense to "murder" without qualification. See, e.g., People v Anderson (Cal. 2002) ("duress is not a defense to any form of murder"); Am Jur 2d, Homicide (it is "generally held" that duress is not a defense to murder and that "duress [does not] mitigate murder to manslaughter"). But generally, this authority involves interpretation of a statute providing under what terms a duress defense can be raised. Of course, a state legislature may dictate the terms in which the duress defense may be raised. Because our Legislature has not done so, we apply the common-law rule. And we are aware of no court that has considered the issue of whether duress can be raised as a defense to an unintentional homicide….

Understanding the foundation of the no-duress-defense-for-murder rule, we believe that Hale and Blackstone would not have intended to withhold the duress defense on these facts. Because Gafken alleges that she chose to do the lesser evil, a duress defense is available.

The prosecution doesn't offer many arguments to the contrary. Instead, it argues that this Court should not allow a duress defense for depraved-heart murder because the facts will make it very difficult for Gafken to succeed under a duress defense. But that argument confuses whether the law permits a duress defense (our job) with whether the defendant will be able to prevail on such a defense before a jury (not our job). A jury may agree with the prosecution—Gafken has a right to find out.

A defendant is constitutionally guaranteed the right to a "meaningful opportunity to present a complete defense." The trial court's order preventing Gafken from raising a duress defense to a second-degree murder charge that relied on a depraved-heart theory of malice was error, and it was not harmless. The denial of the defense, coupled with the trial court's exclusion of any evidence that Scandalito threatened Gafken, effectively left Gafken with no defense at all. The jury heard Gafken concede that she engaged in the conduct leading to the victim's death but was never able to consider whether "the law excused [her] conduct …." …