5.05 Duress

Evidence has been presented that [defendant] was threatened by [__________] with serious bodily injury or death.

[Defendant] cannot be found guilty if [defendant] participated in the [describe offense] only because [defendant] (1) acted under an immediate threat of serious bodily injury or death; (2) had a well-grounded belief that the threat would be carried out; and (3) had no reasonable opportunity to escape or otherwise frustrate the threat. On this issue, just as on all others, the burden is on the government to prove the defendant’s guilt beyond a reasonable doubt. To find [defendant] guilty, therefore, you must conclude beyond a reasonable doubt that when [defendant] participated in the [describe offense] (1) no such threat occurred or it was not immediate; or (2)  [defendant] had a reasonable opportunity to escape or otherwise frustrate the threat but did not exercise it; or (3) [defendant] did not have a well-grounded belief that the threat would be carried out.

Comment(s)

Before this defense can go to the jury, the court must determine that the defendant has met the entry-level burden of producing enough evidence to support the three elements for a finding of duress. See United States v. Arthurs, 73 F.3d 444, 448 (1st Cir. 1996); United States v. Amparo, 961 F.2d 288, 291 (1st Cir.), cert. denied, 506 U.S. 878 (1992). This is only a burden of production, not persuasion. The burden of persuasion remains with the government, at least if the charged crime requires mens rea. See Amparo, 961 F.2d at 291; see also United States v. Bailey, 444 U.S. 394, 415-16 (1980); United States v. Ciambrone, 601 F.2d 616, 626-27 (2nd Cir. 1979); Model Penal Code § 2.09.