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Using duress as a affirmative criminal defense

On Behalf of | Aug 7, 2015 | Criminal Defense |

When New Yorkers are suspected of committing a crime, the accused may be charged with crimes he or she believes they did not commit. In these matters, establishing a criminal defense is essential in proving his or her innocence. Moreover, when making an affirmative defense against criminal allegations, the defendant could reduce or avoid the possible criminal penalties he or she is facing, if a conviction is made.

A previous blog considered the affirmative defense of entrapment, detailing how and when it could be used. Another affirmative defense that could be used is duress. Section 40 of the New York Penal Law defines this defense and dictates the usage of this affirmative defense.

According to this section, a defendant could use duress as a defense, if he or she was coerced into engaging in the alleged criminal conduct. Additionally, the defendant could also use the duress defense if the unlawful conduct was in response to imminent threat to the defendant or a third person. In this situation, it must be shown that the defendant acted in a manner that a person of reasonable firmness would have acted in his or her situation.

The defense of duress is not available in all situations. If it is found that the defendant acted intentionally, duress may not be an available defense. Further, if it is found that the defendant recklessly placed him or herself in the situation where it was probable that he or she would be subjected to duress, duress may not be an available defense option.

In order to determine whether duress or other defense options are available, defendants should understand the charges against them. In addition, it is important to be knowledgeable about the situation leading up to the criminal charges so an informed decision could be made regarding his or her defense.

Source:, “S 40.00 Duress,” accessed on Aug. 3, 2015