The Duress Defense’s Uncharted Terrain: Applying it to Murder, Felony Murder, and the Mentally Retarded Defendant

50 Pages Posted: 7 Jul 2010

See all articles by Steven J. Mulroy

Steven J. Mulroy

University of Memphis - Cecil C. Humphreys School of Law

Date Written: July 6, 2010


This article explores two issues of first impression in the federal courts raised by a recent Sixth Circuit case: the applicability of the duress defense to felony murder, and whether the mental retardation of the defendant is relevant to such a defense.

No federal court has ruled on the applicability of duress to felony murder. A few state courts have so ruled, with mixed results. Prior to the August 2005 Sixth Circuit ruling, no federal court has ruled on the relevance (if any) of mental retardation in meeting the elements of duress. A few federal courts have ruled in the analogous area of “battered women's syndrome,” with mixed results.

Some attention has been given to the general question of whether there should be a duress defense to intentional murder, but none to the distinct question of whether it should be a defense to (non-intentional) felony murder, let alone the question of the relevance of mental retardation to the defense. Scholarship on the issue includes some discussion of cases involving the background of war, and the special type of duress that war provides. These cases raise the question of the relevance of coercion when military personnel follow orders – a question of increasing salience amid the recent controversies concerning the mistreatment of prisoners by U.S. military personnel.

Part II of the article provides general background on the defense, and distinguishes it from the related common-law defense of “necessity.” Part III argues for a reversal of the common-law rule categorically barring assertion of the defense to the crime of murder. It explains that while a threat to a defendant's life may never justify the act of killing an innocent person, it may excuse a defendant from responsibility for that wrongful act. Part IV argues that even if the law bars the use of duress as a defense to murder, that rule should not apply to a charge of felony murder, especially where the coerced defendant played no direct part in the killing. Among other things, such a result follows from the basic rule that duress can excuse the predicate felony, and liability for the predicate felony is a prerequisite to felony murder liability. Part V argues that duress allows for reasonable mistakes regarding the presence of a threat and the absence of lawful alternatives. It also argues that evidence of mental retardation and other cognizable physical and mental disabilities should be relevant, even under the duress defense's objective, “reasonable person” standard.

Suggested Citation

Mulroy, Steven J., The Duress Defense’s Uncharted Terrain: Applying it to Murder, Felony Murder, and the Mentally Retarded Defendant (July 6, 2010). San Diego Law Review, Vol. 43, 2006; University of Memphis Legal Studies Research Paper No. 55. Available at SSRN:

Steven J. Mulroy (Contact Author)

University of Memphis - Cecil C. Humphreys School of Law ( email )

One North Front Street
Memphis, TN 38103-2189
United States

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