New Jersey Duress Defense

New Jersey Duress defense is an affirmative defense, meaning that the defendant has the burden to prove it by preponderance of the evidence standard.

This defense may be raised to any offense including kidnapping and aggravated assault but in a murder prosecution it will only reduce the degree of the crime to manslaughter.

Once there is evidence to support the defense of duress, the burden is on the state to disprove the duress beyond a reasonable doubt.

The defense is applicable if a defendant engaged in conduct because he was coerced to do so by the use of a threat to use unlawful force against the person or the person of another.

The threat or use of unlawful force must be such that a person of reasonable firmness in the defendant’s situation would have been unable to resist.

For this defense there must be a threat to harm the defendant or another person.

A threat to property is insufficient to invoke this defense.

There is no requirement that the threat pose a present, imminent and impending harm to the defendant or another.

However, the coercion must be such that a person of reasonable firmness in the defendant’s situation would have been unable to resist.

The factors which a jury would consider would be the immediacy as well as the gravity of the harm threatened, the seriousness of the offense committed, the identity of the person endangered, the possibilities of escape and the opportunities for seeking official assistance, as well as other attributes such as age and health of the defendant.

New Jersey Duress defense is not available if the defendant recklessly placed himself in a situation where it was probable that he would be subject to duress.

The defense of duress is also unavailable if the defendant was criminally negligent in placing himself in such a situation where it was probable that he would be subject to duress and negligence suffices to establish culpability - responsibility - for the offense charged.

Duress is not available as a defense to a woman merely because she acted on the command of her husband.

Do you wish to discuss a possible New Jersey duress defense with a NJ criminal defense attorney?