OPINION OF THE COURT
DIXON V. UNITED STATES
548 U. S. ____ (2006)
SUPREME COURT OF THE UNITED STATES
NO. 05-7053
KESHIA CHERIE ASHFORD DIXON, PETITIONER
v.
UNITED STATES
on writ of certiorari to the united states court of
appeals for the fifth circuit
[June 22, 2006]
Justice Stevens delivered the
opinion of the Court.
In January 2003, petitioner
Keshia Dixon purchased multiple firearms at two gun shows, during
the course of which she provided an incorrect address and falsely
stated that she was not under indictment for a felony. As a result
of these illegal acts, petitioner was indicted and convicted on one
count of receiving a firearm while under indictment in violation of
18 U. S. C. §922(n) and eight counts of making false
statements in connection with the acquisition of a firearm in
violation of §922(a)(6). At trial, petitioner admitted that she
knew she was under indictment when she made the purchases and that
she knew doing so was a crime; her defense was that she acted under
duress because her boyfriend threatened to kill her or hurt her
daughters if she did not buy the guns for him.
Petitioner contends that the trial judge’s
instructions to the jury erroneously required her to prove duress
by a preponderance of the evidence instead of requiring the
Government to prove beyond a reasonable doubt that she did not act
under duress. The Court of Appeals rejected petitioner’s
contention, 413 F. 3d 520 (CA5 2005); given contrary treatment
of the issue by other federal courts,[
Footnote 1] we granted certiorari, 546 U. S. __
(2006).
I
At trial, in her request for jury
instructions on her defense of duress, petitioner contended that
she “should have the burden of production, and then that the
Government should be required to disprove beyond a reasonable doubt
the duress.” App. 300. Petitioner admitted that this request was
contrary to Fifth Circuit precedent, and the trial court, correctly
finding itself bound by Circuit precedent, denied petitioner’s
request.
Ibid. Instead, the judge’s instructions to the
jury defined the elements of the duress defense[
Footnote 2] and stated that petitioner has “the
burden of proof to establish the defense of duress by a
preponderance of the evidence.”
Id., at 312.
Petitioner argues here, as she
did in the District Court and the Court of Appeals, that federal
law requires the Government to bear the burden of disproving her
defense beyond a reasonable doubt and that the trial court’s
erroneous instruction on this point entitles her to a new trial.
There are two aspects to petitioner’s argument in support of her
proposed instruction that merit separate discussion. First,
petitioner contends that her defense “controverted the
mens
rea required for conviction” and therefore that the Due
Process Clause requires the Government to retain the burden of
persuasion on that element. Brief for Petitioner 41. Second,
petitioner argues that Fifth Circuit’s rule is “contrary to modern
common law.”
Id., at 14.
II
The crimes for which petitioner
was convicted require that she have acted “knowingly,” §922(a)(6),
or “willfully,” §924(a)(1)(D).[
Footnote 3] As we have explained, “unless the text of the
statute dictates a different result, the term ‘knowingly’ merely
requires proof of knowledge of the facts that constitute the
offense.”
Bryan v.
United States,
524 U. S. 184, 193
(1998) (footnote omitted). And the term “willfully” in
§924(a)(1)(D) requires a defendant to have “acted with knowledge
that his conduct was unlawful.”
Ibid. In this case, then,
the Government bore the burden of proving beyond a reasonable doubt
that petitioner knew she was making false statements in connection
with the acquisition of firearms and that she knew she was breaking
the law when she acquired a firearm while under indictment. See
In re Winship,
397 U. S. 358, 364
(1970). Although the Government may have proved these elements in
other ways, it clearly met its burden when petitioner testified
that she knowingly committed certain acts—she put a false address
on the forms she completed to purchase the firearms, falsely
claimed that she was the actual buyer of the firearms, and falsely
stated that she was not under indictment at the time of the
purchase—and when she testified that she knew she was breaking the
law when, as an individual under indictment at the time, she
purchased a firearm. App. 221–222.
Petitioner contends, however,
that she cannot have formed the necessary
mens rea for
these crimes because she did not freely choose to commit the acts
in question. But even if we assume that petitioner’s will was
overborne by the threats made against her and her daughters, she
still
knew that she was making false statements and
knew that she was breaking the law by buying a firearm.
The duress defense, like the defense of necessity that we
considered in
United States v.
Bailey,
444 U. S. 394, 409–410 (1980), may
excuse conduct that would otherwise be punishable, but the
existence of duress normally does not controvert any of the
elements of the offense itself.[
Footnote 4] As we explained in
Bailey,
“[c]riminal liability is normally based upon the concurrence of two
factors, ‘an evil-meaning mind [and] and evil-doing hand
… .’ ”
Id., at 402 (quoting
Morissette
v.
United States,
342 U. S. 246, 251
(1952)). Like the defense of necessity, the defense of duress does
not negate a defendant’s criminal state of mind when the applicable
offense requires a defendant to have acted knowingly or willfully;
instead, it allows the defendant to “avoid liability … because
coercive conditions or necessity negates a conclusion of guilt even
though the necessary
mens rea was present.”
Bailey, 444 U. S., at 402.[
Footnote 5]
The fact that petitioner’s crimes are
statutory offenses that have no counterpart in the common law also
supports our conclusion that her duress defense in no way disproves
an element of those crimes. We have observed that “[t]he definition
of the elements of a criminal offense is entrusted to the
legislature, particularly in the case of federal crimes, which are
solely creatures of statute.”
Liparota v.
United
States,
471 U.
S. 419, 424 (1985). Here, consistent with the movement away
from the traditional dichotomy of general versus specific intent
and toward a more specifically defined hierarchy of culpable mental
states, see
Bailey, 444 U. S., at 403–404, Congress
defined the crimes at issue to punish defendants who act
“knowingly,” §922(a)(6), or “willfully,” §924(a)(1)(D). It is these
specific mental states, rather than some vague “evil mind,” Brief
for Petitioner 42, or “ ‘criminal’ intent,”
Martin v.
Ohio,
480
U. S. 228, 235 (1987), that the Government is required to prove
beyond a reasonable doubt, see
Patterson v.
New
York,
432 U. S.
197, 211, n. 12 (1977) (“The applicability of the
reasonable-doubt standard, however, has always been dependent on
how a State defines the offense that is charged in any given
case”). The jury instructions in this case were consistent with
this requirement and, as such, did not run afoul of the Due Process
Clause when they placed the burden on petitioner to establish the
existence of duress by a preponderance of the evidence.
III
Having found no constitutional
basis for placing upon the Government the burden of disproving
petitioner’s duress defense beyond a reasonable doubt, we next
address petitioner’s argument that the modern common law requires
the Government to bear that burden. In making this argument,
petitioner recognizes that, until the end of the 19th century,
common-law courts generally adhered to the rule that “the proponent
of an issue bears the burden of persuasion on the factual premises
for applying the rule.” Fletcher, Two Kinds of Legal Rules: A
Comparative Study of Burden-of-Persuasion Practices in Criminal
Cases, 77 Yale L. J. 880, 898 (1967–1968). In petitioner’s
view, however, two important developments have established a
contrary common-law rule that now prevails in federal courts: this
Court’s decision in
Davis v.
United States,
160 U. S. 469
(1895), which placed the burden on the Government to prove a
defendant’s sanity, and the publication of the Model Penal Code in
1962.
Although undisputed in this case,
it bears repeating that, at common law, the burden of proving
“affirmative defenses—indeed, ‘all circumstances … of
justification, excuse or alleviation’—rested on the defendant.”
Patterson, 432 U. S., at 202 (quoting 4 W. Blackstone,
Commentaries *201); see also
Martin v.
Ohio, 480
U. S., at 235;
Mullaney v.
Wilbur,
421 U. S. 684, 693
(1975). This common-law rule accords with the general evidentiary
rule that “the burdens of producing evidence and of persuasion with
regard to any given issue are both generally allocated to the same
party.” 2 J. Strong, McCormick on Evidence §337, p. 415 (5th ed.
1999). And, in the context of the defense of duress, it accords
with the doctrine that “where the facts with regard to an issue lie
peculiarly in the knowledge of a party, that party has the burden
of proving the issue.”
Id., at 413. Although she claims
that the common-law rule placing the burden on a defendant to prove
the existence of duress “was the product of flawed reasoning,”
petitioner accepts that this was the general rule, at least until
this Court’s decision in
Davis. Brief for Petitioner 18.
According to petitioner, however,
Davis initiated a
revolution that overthrew the old common-law rule and established
her proposed rule in its place.
Davis itself, however, does not
support petitioner’s position. In that case, we reviewed a
defendant’s conviction for having committed murder “feloniously,
wilfully, and of his malice aforethought.” 160 U. S., at 474. It
was undisputed that the prosecution’s evidence “if alone
considered, made it the duty of the jury to return a verdict of
guilty of the crime charged”; the defendant, however, adduced
evidence at trial tending to show that he did not have the mental
capacity to form the requisite intent.
Id., at 475. At
issue before the Court was the correctness of the trial judge’s
instruction to the jury that the law “ ‘presumes every man is
sane, and the burden of showing it is not true is upon the party
who asserts it.’ ”
Id., at 476. Under this
instruction, “if the evidence was
in equilibrio as to the
accused being sane, that is, capable of comprehending the nature
and effect of his acts, he was to be treated just as he would be if
there were no defence of insanity or if there was an entire absence
of proof that he was insane.”
Id., at 479.
In reversing the defendant’s conviction, we
found ourselves “unable to assent to the doctrine that
in a
prosecution for murder … it is the duty of the jury to convict
where the evidence is equally balanced on the issue as to the
sanity of the accused at the time of the killing.”
Id., at
484 (emphasis added). Instead, we concluded that this defendant was
“entitled to an acquittal of
the specific crime charged if
upon all the evidence there is reasonable doubt whether he was
capable in law of committing the crime.”
Ibid. (emphasis
added). Our opinion focused on the “definition of murder,”
explaining that “it is of the very essence of that heinous crime
that it be committed by a person of ‘sound memory and discretion,’
and with ‘malice aforethought.’ ”
Ibid. (citations
omitted). Reviewing “the adjudged cases” and “elementary treatises
upon criminal law,” we found that “[a]ll admit that the crime of
murder necessarily involves the possession by the accused of such
mental capacity as will render him criminally responsible for his
acts.”
Id., at 485. Thus, when we ultimately found that
the burden of proving the accused’s sanity rested on the
Government, our holding rested on the conclusion that:
“[Davis’] guilt cannot be said to have been proved
beyond a reasonable doubt—his will and his acts cannot be held to
have joined in perpetrating the murder charged—if the jury, upon
all the evidence, have a reasonable doubt whether he was legally
capable of committing crime, or (which is the same thing) whether
he wilfully, deliberately, unlawfully, and of malice aforethought
took the life of the deceased. As the crime of murder involves
sufficient capacity to distinguish between right and wrong, the
legal interpretation of every verdict of guilty as charged is that
the jury believed from all the evidence beyond a reasonable doubt
that the accused was guilty, and was therefore responsible,
criminally, for his acts. How then upon principle or consistently
with humanity can a verdict of guilty be properly returned, if the
jury entertain a reasonable doubt as to the existence of a fact
which is essential to guilt, namely, the capacity in law of the
accused to commit that crime?”
Id., at 488.
Our opinion in
Davis,
then, interpreted a defendant’s sanity to controvert the necessary
mens rea for the crime of murder committed “feloniously,
wilfully, and of his malice aforethought,”
id., at 474, as
“[o]ne who takes human life cannot be said to be actuated by malice
aforethought, or to have deliberately intended to take life, or to
have ‘a wicked, depraved, and malignant heart,’ … unless at the
time he had sufficient mind to comprehend the criminality or the
right and wrong of such an act,”
id., at 485. We required
the Government to prove the defendant’s sanity beyond a reasonable
doubt because the evidence that tended to prove insanity also
tended to disprove an essential element of the offense charged. See
Davis v.
United States,
165 U. S. 373, 378
(1897) (“[T]he fact of sanity,
as any other essential fact in
the case, must be established to the satisfaction of the jury
beyond a reasonable doubt” (emphasis added)). Whether or not this
reasoning correctly treated insanity as negating the
mens
rea for murder as defined in the statute at issue, cf.,
n. 4,
supra, it does not help petitioner: The
evidence of duress she adduced at trial does not contradict or tend
to disprove any element of the statutory offenses that she
committed.
Nor does the proposition for which
Davis has come to stand help petitioner’s cause. Although
written more narrowly in the context of a prosecution for the crime
of murder,
Davis was later interpreted to establish a
general “rule for federal prosecutions … that an accused is
‘entitled to an acquittal of the specific crime charged if upon all
the evidence there is reasonable doubt whether he was capable in
law of committing crime.’ ”
Leland v.
Oregon,
343
U. S. 790, 797 (1952) (quoting
Davis, 160 U. S., at
484); see also
Lynch v.
Overholser,
369 U. S. 705, 713
(1962) (explaining that the
Davis rule applied in all
federal courts). After
Davis, if a federal defendant
introduced sufficient evidence to raise a reasonable doubt as to
his sanity, it was sufficient to create a question for the jury on
which the Government bore the ultimate burden of persuasion beyond
a reasonable doubt. See,
e.g.,
Hall v.
United
States, 295 F. 2d 26, 28 (CA4 1961);
Holloway v.
United States, 148 F. 2d 665, 666 (CADC 1945);
Post v.
United States, 135 F. 1, 10 (CA5
1905).
In apparent recognition of the fact that
Davis relied on the heightened
mens rea
applicable to the particular statute at issue, we held in
Leland that this rule was not constitutionally mandated,
343 U. S., at 797, and Congress overruled it by statute in 1984,
requiring a defendant to prove his insanity by clear and convincing
evidence, 98 Stat. 2057, codified at 18 U. S. C. §17(b).
Moreover, Congress has treated the defense of insanity differently
from that of duress not only by codifying it but by requiring
defendants who intend to rely on an insanity defense to provide
advance notice to the Government. See Fed. Rule Crim.
Proc. 12.2(a). Thus, even if the rule arising from
Davis may have once been relevant to an evaluation of
other affirmative defenses, Congress’ differential treatment of the
insanity defense and its rejection of the
Davis rule are
inconsistent with petitioner’s invitation to follow
Davis’
lead in this case.
Indeed, petitioner’s reliance on
Davis ignores the fact that federal crimes “are solely
creatures of statute,”
Liparota, 471 U. S., at 424, and
therefore that we are required to effectuate the duress defense as
Congress “may have contemplated” it in the context of these
specific offenses,
United States v.
Oakland Cannabis
Buyers’ Cooperative,
532 U. S. 483, 491, n. 3 (2001)
(internal quotation marks omitted); see also
id., at 499
(Stevens, J., concurring in judgment) (explaining that Court was
addressing whether the statute at issue foreclosed a necessity
defense to specific charges brought under the statute);
Bailey, 444 U. S., at 410 (“We need not speculate now,
however, on the precise contours of whatever defenses of duress or
necessity are available against charges brought under [18 U.
S. C.] §751(a)”). The offenses at issue in this case were
created by statute in 1968, when Congress enacted the Omnibus Crime
Control and Safe Streets Act (hereinafter Safe Streets Act or Act).
See 82 Stat. 197. There is no evidence in the Act’s structure or
history that Congress actually considered the question of how the
duress defense should work in this context, and there is no
suggestion that the offenses at issue are incompatible with a
defense of duress.[
Footnote 6]
Cf.
Oakland Cannabis Buyers’ Cooperative, 532 U. S., at
491. Assuming that a defense of duress is available to the
statutory crimes at issue,[
Footnote
7] then, we must determine what that defense would look like as
Congress “may have contemplated” it.
As discussed above, the common law long
required the defendant to bear the burden of proving the existence
of duress. Similarly, even where Congress has enacted an
affirmative defense in the proviso of a statute, the “settled rule
in this jurisdiction [is] that an indictment or other pleading …
need not negative the matter of an exception made by a proviso or
other distinct clause … and that it is incumbent on one who relies
on such an exception to set it up and establish it.”
McKelvey v.
United States,
260 U. S. 353, 357
(1922); see also
United States v.
Dickson, 15
Pet. 141, 165 (1841) (calling this “the general rule of law which
has always prevailed, and become consecrated almost as a maxim in
the interpretation of statutes”). Even though the Safe Streets Act
does not mention the defense of duress, we can safely assume that
the 1968 Congress was familiar with both the long-established
common-law rule[
Footnote 8] and
the rule applied in
McKelvey and that it would have
expected federal courts to apply a similar approach to any
affirmative defense that might be asserted as a justification or
excuse for violating the new law.[
Footnote 9]
This conclusion is surely more reasonable than
petitioner’s hypothesis that
Davis dramatically upset a
well-settled rule of law. Petitioner cites only one federal case
decided before 1968 for the proposition that it has been well
established in federal law that the Government bears the burden of
disproving duress beyond a reasonable doubt. But that case involved
a defendant’s claim that he “lacked the specific intent to defraud
required by the statute for the reason that he committed the
offense under duress and coercion.”
Johnson v.
United
States, 291 F. 2d 150, 152 (CA8 1961). Thus, when the
Court of Appeals explained that “there is no burden upon the
defendant to prove his defense of coercion,”
id., at 155,
that statement is best understood in context as a corollary to the
by-then-unremarkable proposition that “the burden of proof rests
upon the Government to prove the defendant’s guilt beyond a
reasonable doubt,”
ibid. Properly understood,
Johnson provides petitioner little help in her uphill
struggle to prove that a dramatic shift in the federal common-law
rule occurred between
Davis and the enactment of the Safe
Streets Act in 1968.
Indeed, for us to be able to accept
petitioner’s proposition, we would need to find an overwhelming
consensus among federal courts that it is the Government’s burden
to disprove the existence of duress beyond a reasonable doubt. The
existence today of disagreement among the Federal Courts of Appeals
on this issue, however—the very disagreement that caused us to
grant certiorari in this case, see n. 1,
supra—demonstrates that no such consensus has ever
existed. See also
post, at 6–8 (Breyer, J., dissenting)
(discussing differences in treatment of the duress defense by the
various Courts of Appeals). Also undermining petitioner’s argument
is the fact that, in 1970, the National Commission on Reform of
Federal Criminal Laws proposed that a defendant prove the existence
of duress by a preponderance of the evidence. See 1 Working Papers
278. Moreover, while there seem to be few, if any,
post-
Davis, pre-1968 cases placing the burden on a
defendant to prove the existence of duress,[
Footnote 10] or even discussing the issue in
any way, this lack of evidence does not help petitioner. The
long-established common-law rule is that the burden of proving
duress rests on the defendant. Petitioner hypothesizes that
Davis fomented a revolution upsetting this rule. If this
were true, one would expect to find cases discussing the matter.
But no such cases exist.
It is for a similar reason that we give no
weight to the publication of the Model Penal Code in 1962. As
petitioner notes, the Code would place the burden on the government
to disprove the existence of duress beyond a reasonable doubt. See
Model Penal Code §1.12, 10A U. L. A. 88 (2001) (hereinafter
Model Penal Code or Code) (stating that each element of an offense
must be proved beyond a reasonable doubt); §1.13(9)(c), at 91
(defining as an element anything that negatives an excuse for the
conduct at issue); §2.09, at 131–132 (establishing affirmative
defense of duress). Petitioner argues that the Code reflects “well
established” federal law as it existed at the time. Brief for
Petitioner 25. But, as discussed above, no such consensus existed
when Congress passed the Safe Streets Act in 1968. And even if we
assume Congress’ familiarity with the Code and the rule it would
establish, there is no evidence that Congress endorsed the Code’s
views or incorporated them into the Safe Streets Act.
In fact, the Act itself provides evidence to
the contrary. Despite the Code’s careful delineation of mental
states, see Model Penal Code §2.02, 10A U. L. A., at 94–95,
the Safe Streets Act attached no explicit
mens rea
requirement to the crime of receiving a firearm while under
indictment, §924(a), 82 Stat. 233 (“Whoever violates any provision
of this chapter … shall be fined not more than $5,000 or imprisoned
not more than five years, or both”). And when Congress amended the
Act to impose a
mens rea requirement, it punished people
who “willfully” violate the statute, see 100 Stat. 456, a mental
state that has not been embraced by the Code, see Model Penal Code
§2.02(2), 10A U. L. A., at 94–95 (defining “purposely,”
“knowingly,” “recklessly,” and “negligently”); Explanatory Note, p.
97 (“Though the term ‘wilfully’ is not used in the definitions of
crimes contained in the Code, its currency and its existence in
offenses outside the criminal code suggest the desirability of
clarification”). Had Congress intended to adopt the Code’s
structure when it enacted or amended the Safe Streets Act, one
would expect the Act’s form and language to adhere much more
closely to that used by the Code. It does not, and, for that
reason, we cannot rely on the Model Penal Code to provide evidence
as to how Congress would have wanted us to effectuate the duress
defense in this context.
IV
Congress can, if it chooses,
enact a duress defense that places the burden on the Government to
disprove duress beyond a reasonable doubt. In light of Congress’
silence on the issue, however, it is up to the federal courts to
effectuate the affirmative defense of duress as Congress “may have
contemplated” it in an offense-specific context.
Oakland
Cannabis Buyers’ Cooperative, 532 U. S., at 491, n. 3. In
the context of the firearms offenses at issue—as will usually be
the case, given the long-established common-law rule—we presume
that Congress intended the petitioner to bear the burden of proving
the defense of duress by a preponderance of the evidence.
Accordingly, the judgment of the Court of Appeals is
affirmed.
It is so ordered.
Footnote 1
Cf.,
e.g.,
United States v.
Talbott, 78 F. 3d 1183, 1186 (CA7 1996)
(per
curiam); United States v.
Riffe, 28
F. 3d 565, 568, n. 2 (CA6 1994);
United States
v.
Simpson, 979 F. 2d 1282, 1287 (CA8 1992).
Footnote 2
There is no federal statute defining the
elements of the duress defense. We have not specified the elements
of the defense, see,
e.g.,
United States v.
Bailey,
444 U. S. 394, 409–410 (1980), and
need not do so today. Instead, we presume the accuracy of the
District Court’s description of these elements: (1) The defendant
was under an unlawful and imminent threat of such a nature as to
induce a well-grounded apprehension of death or serious bodily
injury; (2) the defendant had not recklessly or negligently placed
herself in a situation in which it was probable that she would be
forced to perform the criminal conduct; (3) the defendant had no
reasonable, legal alternative to violating the law, that is, a
chance both to refuse to perform the criminal act and also to avoid
the threatened harm; and, (4) that a direct causal relationship may
be reasonably anticipated between the criminal act and the
avoidance of the threatened harm. See App. 312–313; see generally
United States v.
Harper, 802 F. 2d 115, 118
(CA5 1986).
Footnote 3
Although §922(n) does not contain a
mens
rea requirement, the relevant sentencing provision,
§924(a)(1)(D), requires that a violation be committed
willfully.
Footnote 4
As the Government recognized at oral
argument, there may be crimes where the nature of the
mens
rea would require the Government to disprove the existence of
duress beyond a reasonable doubt. See Tr. of Oral Arg. 26–27; see
also,
e.g., 1 W. LaFave, Substantive Criminal Law §5.1, p.
333 (2d ed. 2003) (hereinafter LaFave) (explaining that some
common-law crimes require that the crime be done
“ ‘maliciously’ ”); Black’s Law Dictionary 968 (7th ed.
1999) (defining malice as “[t]he intent, without justification or
excuse, to commit a wrongful act”).
Footnote 5
Professor LaFave has explained the duress
defense as follows:
“The rationale of the defense is not that the defendant, faced
with the unnerving threat of harm unless he does an act which
violates the literal language of the criminal law, somehow loses
his mental capacity to commit the crime in question. Nor is it that
the defendant has not engaged in a voluntary act. Rather it is
that, even though he has done the act the crime requires and has
the mental state which the crime requires, his conduct which
violates the literal language of the criminal law is excused
… .” 2 LaFave §9.7(a), at 72 (footnote omitted).
Footnote 6
While Congress’ findings in support of the
Safe Streets Act show that Congress was concerned because “the ease
with which any person can acquire firearms … is a significant
factor in the prevalence of lawlessness and violent crime in the
United States,” §901(a)(2), 82 Stat. 225, it would be unrealistic
to read this concern with the proliferation of firearm-based
violent crime as implicitly doing away with a defense as strongly
rooted in history as the duress defense, see,
e.g., 4 W.
Blackstone, Commentaries on the Laws of England 30 (1769).
Footnote 7
We have previously made this assumption when
addressing common-law affirmative defenses, see
United
States v.
Oakland Cannabis Buyers’ Cooperative,
532 U. S. 483, 491 (2001);
Bailey, 444 U. S., at 410, and the parties give us no
reason to question it here.
Footnote 8
Indeed, when a congressional committee did
consider codifying the duress defense, it would have had the courts
determine the defense “according to the principles of the common
law as they may be interpreted in the light of reason and
experience.” S. 1437, 95th Cong., 2d Sess., §501 (1978).
Footnote 9
Duress, like the defense at issue in
McKelvey, is an excuse that allows an exception from
liability. See,
e.g., 2 LaFave §9.7, at 72 (“The rationale
of the defense of duress is that the defendant ought to be excused
when he ‘is the victim of a threat that a person of reasonable
moral strength could not fairly be expected to resist’ ”).
Footnote 10
In
D’Aquino v.
United
States, 192 F. 2d 338, 358, n. 11 (CA9 1951), the
trial court instructed the jury that it would be warranted in
acquitting the defendant on the basis that she acted under duress
“ ‘if you believe from the evidence that the defendant
committed these acts that the Government alleges … under a well
grounded apprehension of immediate death or serious bodily injury
… .’ ” This instruction did not require the Government to
disprove duress beyond a reasonable doubt, and it seemingly placed
the burden on the defendant to prove the existence of duress.
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