OUJI-CR 8-20

DEFENSE OF DURESS - DURESS DEFINED

A person is entitled to the defense of duress if that person committed the act(s)/omission(s) which constitute the crime because of a reasonable belief that (he/ she)/(his/her spouse/child) was in imminent danger of death or great bodily harm from another.

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Statutory Authority: 21 O.S. 1991 & Supp. 1995, §§ 152(7), 155, 156.

Committee Comments

For Oklahoma cases addressing the defense of duress, see Tully v. State, 730 P.2d 1206 (Okl. Cr. 1986) (duress defense may be available in felony murder case); Spears v. State, 727 P.2d 96 (Okl. Cr. 1986) (holding overturned by 1992 amendment to 21 O.S. Supp. 1995, § 156); Smith v. State, 703 P.2d 201 (Okl. Cr. 1985); Denson v. State, 481 P.2d 190 (Okl. Cr. 1970); Methvin v. State, 60 Okl. Cr. 1, 60 P.2d 1062 (1936). See also Shelton v. State, 793 P.2d 866, 876-77 (Okl. Cr. 1988) (trial court properly refused instruction on defense of duress where there was no evidence of use of actual force or fear to compel defendant to commit crimes).

It should be pointed out that the statutory language places no restriction on the kinds of crimes for which the defense of duress is available. At common law, duress is not available as a defense to murder or assault with intent to kill. W. LaFave & A. Scott, Criminal Law § 49, at 376 (1972); R. Perkins, Criminal Law 951-53 (2d ed. 1969). Although the Oklahoma Court of Criminal Appeals has not been presented this precise question, the court has indicated approval of cases from other jurisdictions which deny the defense of duress to crimes of intentional killing. Methvin, supra. But cf. Tully, supra (allowing duress instruction in felony murder case).

Special limitations apply to the availability of the defense of duress in prosecutions for escape. Davis v. State, 763 P.2d 109, 110 (Okl. Cr. 1988) ("We think it is settled law that duress is not a defense to Escape in this jurisdiction."); Chester v. State, 485 P.2d 1065, 1067 (Okl. Cr. 1971) (defense may be available in limited circumstances). In prosecutions for escape, no instruction on duress or involuntary escape should be given unless the defendant was in imminent and immediate danger at the time of the escape and returned to custody at the first opportunity. Johnson v. State, 745 P.2d 1193 (Okl. Cr. 1987). See also Grubb v. State, 533 P.2d 989, 990 (Okl. Cr. 1975), in which the Oklahoma Court of Criminal Appeals approved the following instruction: "You are instructed that it is no defense to a charge of escape that the prisoner feared violence from third persons, and you shall not consider such evidence as a defense or in mitigation of punishment."

For definitions of great bodily harm and imminent danger, see OUJI-CR 8-12.