DURESS[1]
(N.J.S.A. 2C:2-9) model jury charge
In
defense of the charge of ____________________, the defendant _____________________,
contends he/she is not guilty because at the time of
the offense he/she acted under duress. In other words, he/she was coerced to commit the offense
due to the use of, or a threat to use, unlawful force against (him/her) or another person.
Our
law provides in pertinent part:
(I)t is an affirmative defense that an actor
engaged in the conduct charged to constitute an offense because he was coerced
to do so by the use of, or a threat to use, unlawful force against his person
or the person of another, which a person of reasonable firmness in his
situation would have been unable to resist.
Before
conduct, which would otherwise be criminal, can be excused on the ground that
such conduct was a direct result of force or threats of force upon the
defendant or another, the evidence must indicate that the following conditions
existed at the time:
(1) There was use of, or threatened use of,
unlawful force against the person of the defendant or another; and
(2)
The force, or threatened force, would be of such a type
that a person of reasonable firmness in a similar situation would have been
unable to resist.
This
defense of duress is unavailable to the defendant if you find that he/she recklessly placed (himself/herself) in a situation in which it was probable that he/she would be subjected to duress.[2]
A
person acts recklessly with respect to a material element of an offense when he/she consciously disregards a substantial
and unjustifiable risk that the material element exists or will
result from his/her conduct. The risk must be of such
a nature and degree that, considering the nature and purpose of the actor's
conduct and the circumstances known to him/her, its disregard involves a gross
deviation from the standard of conduct that a reasonable person would observe
in the actor's situation.
"Unlawful
force" means force including confinement, which is employed without the
consent of the person against whom it is directed.[3]
In
determining whether the defense of duress has been established, you should
consider:
(1) The factor of immediacy (that is, the
force or threats posed a danger of present, imminent and impending harm to the
defendant or to another) as well as the gravity of the harm or threatened harm;
(2) The seriousness of the crime committed;
(3) The identity of the person endangered (In
other words, was it the defendant or another person who was allegedly
endangered?);
(4) The possibilities for escape or
resistance and the opportunity for seeking official assistance, if realistic.[4] Remember, the standard utilized here is that
which a person of reasonable firmness in the defendant's situation would have
been unable to resist.
The
State has the burden to prove beyond a reasonable doubt each element of the
offense of __________________. The State
also has the burden to disprove, beyond a reasonable doubt, the defense of
duress.
If
you find the State has proven beyond a reasonable doubt each element of the
offense charged and that the State has disproved beyond a reasonable doubt the
defense of duress, you must find the defendant guilty.
If,
however, you determine that the State has failed to prove beyond a reasonable
doubt one or more of the elements of ___________________, or has failed to
disprove the defense of duress, you must find the defendant not guilty.
[1]
Note 1: N.J.S.A. 2C:2-9 (b) provides that
in the prosecution for murder, the defense of duress is only available to
reduce the degree of the crime to manslaughter.
Note
2: This defense is unavailable if the
defendant was criminally negligent in placing (himself/herself) in such a
situation, whenever criminal negligence suffices to establish culpability for
the substantive offense charged. N.J.S.A.
2C:2-9 (b).
Note
3: The State has the burden of
disproving the affirmative defense of duress.
State v. Galiyano, 178 N.J. Super. 293 (App. Div.
1981). This holding is consistent with N.J.S.A.
2C:1-13b which provides that the State must disprove an affirmative defense
unless another statute requires otherwise.
Neither N.J.S.A. 2C:2-9, nor any other statute, requires the
defendant to prove such a defense. But
note the Supreme Court decision of State v. Toscano, 74 N.J.
421 (1977) which places upon the defendant the burden of persuasion on the
issue of duress in that (he/she) must establish the defense by a preponderance
of the evidence in order to win an acquittal.
