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WPIC18.01Duress—Defense

11 WAPRAC WPIC 18.01Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 18.01 (4th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
October 2016 Update
Washington State Supreme Court Committee on Jury Instructions
Part IV. Defenses
WPIC CHAPTER 18. Miscellaneous Defenses
WPIC 18.01 Duress—Defense
Duress is a defense to a charge of(fill in crime)if:
(a) The defendant participated in the crime under compulsion by another who by threat or use of force created an apprehension in the mind of the defendant that in case of refusal [the defendant] [or] [another person] would be liable to immediate death or immediate grievous bodily injury; and
(b) Such apprehension was reasonable upon the part of the defendant; and
(c) The defendant would not have participated in the crime except for the duress involved.
[Threat means to communicate, directly or indirectly, the intent to cause death or grievous bodily injury]
[The defense of duress is not available if the defendant intentionally or recklessly placed [himself] [herself] in a situation in which it was probable that [he] [she] would be subject to duress.]
The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge].
NOTE ON USE
Use bracketed material as applicable.
Use WPIC 10.01 (Intent—Intentionally—Definition) and WPIC 10.03 (Recklessness—Definition), as applicable, with this instruction.
COMMENT
RCW 9A.16.060.
An earlier version of WPIC 18.01 was cited with approval by the court in State v. Ng, 110 Wn.2d 32, 750 P.2d 632 (1988), which held that a specific instruction as to the subjective nature of the defense was not required. The current instruction has been modified for this edition to clarify that the threat may be either explicit or implicit. See discussion below.
The defense of duress is available for every crime except murder, felony murder, attempted murder, manslaughter, and homicide by abuse. RCW 9A.16.060(2); State v. Mannering, 150 Wn.2d 277, 75 P.3d 961 (2003) (defense of duress was not available to rebut an attempted murder charge); State v. Ng, 110 Wn.2d 32, 39, 750 P.2d 632 (1988).
The defendant must prove duress by a preponderance of the evidence. State v. Riker, 123 Wn.2d 351, 869 P.2d 43 (1994). Duress does not negate an element of the charged offense. State v. Frost, 160 Wn.2d 765, 773, 161 P.3d 361 (2007), habeas relief denied, Glebe v. Frost, U.S. , 135 S.Ct. 429, 190 L.Ed.2d 317 (2014); State v. Dow, 162 Wn.App. 324, 330, 253 P.3d 476, 479–80 (2011).
Under no circumstances should this instruction be given unless requested, or expressly agreed to, by the defense. A defendant's constitutional right to control his or her defense prohibits the giving of instructions concerning defenses over the defendant's objections. State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013).
In State v. Harvill, 169 Wn.2d 254, 234 P.3d 1166 (2010), the trial court refused to instruct the jury on the defense of duress on the theory that the defendant had been subjected only to an implict threat. The Supreme Court reversed, stating that the duress statute includes both explicit and implicit threats.
The term “grievous bodily injury,” taken from RCW 9A.16.060, is not defined in the statute or in the pattern instructions. The committee believes that it is acceptable practice to give WPIC 18.01 without further definition, leaving the issue to be addressed in the arguments of counsel.
In State v. Turner, 42 Wn.App. 242, 711 P.2d 353 (1985), the trial court refused to instruct the jury on the defense of duress because the defendant did not show that the threats against her posed a threat of immediate death or bodily harm. The appellate court reversed, stating that the question of whether there is a threat of immediate death or bodily harm should be determined by the trier of fact based on an assessment of all the circumstances.
The defense of duress should be distinguished from the defense of necessity. See WPIC 18.02. Duress requires a threat by another human being. State v. Jeffrey, 77 Wn.App. 222, 889 P.2d 956 (1995); State v. Gallegos, 73 Wn.App. 644, 871 P.2d 621 (1994); State v. Turner, 42 Wn.App. 242, 247, 711 P.2d 353 (1985).
[Current as of December 2015.]
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