The Reasonable Firmness Standard

The Reasonable Firmness Standard

Proof that the actor was threatened with unlawful force against a person satisfies only the first working element of § 2.09(1). The final clause of the section adds a second element: the coercion must be of a kind "which a person of reasonable firmness in his situation would have been unable to resist."¹ The first element asked whether the pressure was the right kind of pressure, and this one asks whether it was strong enough to excuse. A threat that frightened the actor, or that a sturdier person would have faced down, supplies the raw material of the defense without completing it. The excuse depends on a showing that a person of ordinary resolve could not fairly have been expected to refuse.

The clause contains two phrases that do different work, and the analysis goes more smoothly when they are separated. The phrase "a person of reasonable firmness" supplies the yardstick: a hypothetical person with an ordinary capacity to withstand pressure, whose capacity marks the limit of what the law may demand of anyone. The phrase "in his situation" tells the fact finder where to place that hypothetical person, which is in the actor's own position, with the features that make that position what it is. The combination makes the reasonable firmness standard a hybrid: the measure is objective, and the setting in which it is applied is the actor's.²

Each half of the hybrid has its own reason. The objective yardstick exists because a test that asked how much this particular defendant could bear would turn the excuse into a measure of temperament. The more timid or compliant the defendant, the easier the acquittal, and the line the law draws would shift with each person's character, so that the criminal law would have no stable account of what it demands. A common norm lets the law say what it may require of everyone. The situational half does subtler work, because the same threat does not exert the same pressure on every person in every position. A yardstick applied to a detached, generic person would ignore real differences between actors and treat unequal pressures as equal. Placing the hypothetical person in the actor's position lets the excuse follow genuine inability to resist and leaves mere weakness of character unexcused.

Students most often go wrong by asking whether the defendant could have resisted, which is the subjective question the Code leaves out. The correct inquiry asks whether a person of reasonable firmness, placed in the defendant's situation, would have been unable to resist.

The remainder of this section takes the clause in three steps. It begins with the objective core, which explains why the test does not ask whether this defendant could resist. It then turns to which of the actor's characteristics are built into the phrase "in his situation," and finally to the surrounding circumstances the fact finder must weigh beyond those characteristics.

The Objective Core

The reasonable-firmness clause poses a question about people in general. It asks whether a person of reasonable firmness, placed in the actor's situation, would have been unable to resist the coercion.⁴ A different question was available to the drafters, namely how much pressure this particular defendant could bear, and the Code declined it. The commission that proposed New Jersey's duress statute, which tracks the Code's wording identically, explained in its commentary that the Code rejects the view that a court should look to the actor's ability to withstand the coercion, and the New Jersey Supreme Court repeated that explanation in State v. B.H.⁵ The defendant's own capacity to resist is therefore never the measure of the defense.

The rejected alternative has real appeal, so its rejection needs a reason. A rule built on actual incapacity would examine the strengths and weaknesses of the particular defendant and his own reaction to the unlawful demand, and it would draw on the thought that a person who truly could not choose otherwise should not be blamed for what he did.⁶ The drafters refused it for practical reasons. Making liability depend on any given actor's fortitude would be no more workable than making it depend on intelligence, clarity of judgment, suggestibility, or moral insight.⁷ The law varies its demands with individual capacity only for a disability that is “both gross and verifiable,” such as the mental disease that can establish insanity, and it leaves lesser weaknesses to be weighed at sentencing.⁸

Incentive supplies a further reason, and it follows from how such a claim would be proved. Evidence about how much fear a defendant could withstand comes largely from the defendant, the prosecution has almost no means of testing it, and every person who raises duress did in fact yield. A standard keyed to the defendant's own capacity would therefore turn on the assertion that is hardest to challenge, namely that he could not help it. The drafters add a point about the law's own function: a standard that does not bend to individual fortitude works better as a norm, because legal commands and sanctions shape values and character over time as well as at the moment of the climactic choice.⁹ Contract law shows what the other approach looks like. Modern contract duress asks whether the particular party's will was in fact overcome, but success there cancels a transaction and the unjust gain it produced.¹⁰ Criminal duress excuses an offense against an innocent person, and the New Jersey court accordingly insisted that the excuse be available only when the threat is one that a person of reasonable firmness would have been unable to resist.¹¹

The objective standard also protects defendants, because its yardstick is ordinary firmness and not heroism. In State v. Heinemann the Connecticut Supreme Court, applying a statute modeled on the Code, explained that a defendant's idiosyncratic inability to withstand a particular threat does not control; the coercive threat must be grave enough to coerce a non-heroic, but reasonably firm, person into criminal conduct.¹² The court described the jury's task as deciding whether a threat or use of force, for which the defendant was not responsible, caused his conduct and would have induced the same conduct by a reasonable person in his situation.¹³ The drafters accepted the other side of the same coin, since a claim of excuse is proper when it rests on the incapacity of people in general to resist the pressure to which the defendant succumbed.¹⁴ In practical terms, the defense is available when persons of ordinary firmness, who are neither heroes nor cowards, would have done what the defendant did.¹⁵ That is what makes the defense normative. It marks the limit of what the law may expect of everyone, so a defendant who yielded to a threat inside that limit is excused and one who yielded to a threat outside it is not.¹⁶

Examination stems tend to dwell on how frightened the defendant was, how nervous by nature, and how quickly the defendant gave in, and each of those details invites the wrong question. Because every duress defendant yielded, the fact of yielding cannot separate one case from another. Students lose this element when they treat how frightened the defendant actually was as the test, when the facts that carry the analysis are the content and credibility of the threat, since those determine what a person of reasonable firmness could have withstood. Which of the defendant's own characteristics enter the comparison, such as size, age, and health, is the subject of the next subsection, and temperament is not among them.¹⁷

The Actor's Situation

The phrase “in his situation” directs the fact finder to place the person of reasonable firmness in the actor's own position, but a position is made of many features, and the phrase does not say which of them travel with the hypothetical person.¹⁹ The Code answers with a sorting rule. As the Connecticut Supreme Court explained in State v. Heinemann, “situation” takes the same scope it has in appraising recklessness and negligence, so that “stark, tangible factors” that differentiate the actor from other people, such as size, strength, age, or health, are considered, while matters of temperament are not.²⁰

Courts applying statutes derived from the Code draw the same line. The New Jersey Supreme Court in State v. B.H. repeated the commission commentary that allows the fact finder to take account of size, strength, age, or health and excludes temperament.²¹ In Commonwealth v. DeMarco the Pennsylvania Supreme Court called the resulting test a hybrid of the objective and the subjective: the fact finder asks what a person of reasonable firmness could resist, but asks it of that person placed in the defendant's situation, and the court listed temperament, intelligence, courageousness, and moral fortitude among the characteristics the fact finder does not consider.²²

Each side of the line has its own reason, and the two reasons differ. Size, strength, age, and health are physical facts that change what a threat means in practice: a person who cannot outrun, outfight, or outlast the coercer faces a different choice from one who can, and a standard that ignored the difference would treat unequal pressures as equal. These facts are also easy to establish, since a medical record or a birth date answers the question without relying on the defendant's own description of the fear. Admitting them therefore makes the standard more accurate about the actor's real predicament without making the defense easier to fake.

Temperament presents the opposite problem. The reasonable-firmness standard measures every defendant against a single yardstick, and timidity, a low tolerance for confrontation, or a shortage of courage is exactly the variable that would move the yardstick from one defendant to the next. If those traits counted, the most easily frightened defendant would face the lowest standard, and the inquiry would slide back into asking what this defendant could bear, which the objective core of the test rejects. Temperament is also hard to test from outside, because the main evidence of it is the defendant's own account. The same reasoning removes intelligence, courageousness, and moral fortitude from the situation. Contract law shows what the alternative looks like, since a party who claims that an improper threat induced assent may point to experience, sophistication, and other personal characteristics as proper considerations.²³ Criminal duress withholds that latitude because a generous standard here excuses an offense against an innocent victim instead of cancelling a bargain.

A narrow exception keeps the exclusion of character traits from reaching every mental condition. DeMarco states that when a defendant suffers from a “gross and verifiable” mental disability “that may establish irresponsibility,” the disability is a relevant consideration even though temperament is not.²⁴ The exception rests on the same two features that justify the physical factors. A disability of that kind is extreme and provable, so admitting it does not allow ordinary differences in nerve to lower the standard for everyone, and the commentary quoted in Heinemann confines the unwillingness to vary legal norms with individual capacity to cases without a disability that is both gross and verifiable.²⁵ Weaker conditions fall short of that line and are left to be weighed at sentencing.²⁶

The traits that do count are not weighed in isolation. Heinemann reasons that the factors differentiating a defendant from the person coercing him, such as size, strength, age, or health, are individualized but must be gauged against the coercer to decide whether the defendant acted reasonably.²⁷ The logic is practical. A trait matters for what it does to the defendant's real options, and frailty or youth limits those options only to the extent that it leaves the defendant at a disadvantage relative to the person making the threat. Against a coercer with the same limitations, the same trait adds little pressure, and against one who overpowers the defendant, it adds a great deal.

Steps two and three carry most of the weight in a typical problem, because examination stems tend to pair a physical trait with a character trait and invite the reader to treat the two alike. The pair of illustrations below holds the threat roughly constant and changes which kind of trait the defendant offers.

Students lose this element in two directions. One error treats personality as part of the situation, because the word sounds broad enough to cover anything about the defendant; the Code ties it to the same stark, tangible factors that count when recklessness and negligence are appraised, and § 2.09(2) returns to that inquiry when it addresses fault in creating the threat.²⁸ The other error calls the standard purely objective and ignores size, age, and health, when the standard is only partially objective and does account for those factors.²⁹

The traits sorted here describe the defendant, and they are only half of what the fact finder weighs. The circumstances surrounding the defendant at the time also bear on the question, including how serious the offense demanded was, what force was threatened, and what alternatives were open, and the next subsection takes up those factors.³¹

Weighing the Surrounding Circumstances

The traits sorted in the last subsection describe the defendant. A second set of inputs describes the predicament: what the defendant was told to do, what would happen on a refusal, and what else the defendant might have done. In Commonwealth v. DeMarco the Pennsylvania Supreme Court, applying a statute derived from the Code, held that the trier of fact must consider the salient situational factors surrounding the defendant at the time of the alleged duress. These are the severity of the offense the defendant was asked to commit, the nature of the force used or threatened, and the alternative ways in which the defendant may have averted that force.³² State v. Heinemann lists the same factors, after explaining that the defendant's own traits are gauged against the coercer to decide whether the defendant acted reasonably.³³ These factors are not additional elements stacked on the reasonable-firmness standard. They are the facts that let the fact finder answer it, because whether a threat could be resisted depends on what resistance would have cost and on what yielding did to someone else.

It helps to picture the three factors as a scale. The nature of the force and the availability of alternatives describe the pressure on the defendant: the first measures how bad the threatened consequence was, and the second measures how much of that consequence the defendant could have avoided without committing a crime. The severity of the offense describes the harm the defendant inflicted to get out from under the pressure. No formula combines them. The fact finder asks whether, given how heavy the pressure was and how much damage the crime did to an innocent person, a person of reasonable firmness in the defendant's situation would have been unable to resist.³⁴

The severity of the offense matters because duress excuses a crime committed against someone who did nothing to deserve it. The harm that victim suffers grows with the seriousness of the offense, so the pressure needed to excuse the offense has to grow with it. Heinemann describes duress as a doctrine of line drawing: assuming the threat stays constant, the willingness to excuse recedes as the offense becomes more heinous, and only some of the people who are forced into a corner and wrongfully harm an innocent person will be excused.³⁵ The result is a sliding relationship. No offense is removed from the defense by this factor alone, but the threat required to excuse a crime rises with the gravity of the crime.

The nature of the force is the factor that measures the pressure itself, and under the Code it is a matter of degree. The Pennsylvania court observed that, unlike the common-law rule, its statute does not require force or a threat of present and impending death or serious bodily injury. The question is whether the force was a type that a person of reasonable firmness in the defendant's situation would have been unable to resist.³⁶ A credible threat to kill, maim, or harm a child sits near the top of that range, and a threat of a slap sits near the bottom, which is why the earlier cashier and clerk could receive different answers on the same standard. Whether the force was actually used or only threatened, and how credible the threat was, also bear on how much pressure the defendant actually faced.

The third factor, the alternative ways of averting the force, tests whether the defendant was really cornered. If the defendant had a safe way out, such as escaping, summoning help, or simply refusing without consequence, then a person of reasonable firmness would have taken it, and the claim that such a person could not have resisted is weaker. This factor links back to the immediacy discussion above. A threat that is not about to be carried out leaves time to get away or to obtain help, and because the Code does not require that the harm be present and impending, that time is weighed here as one alternative among others.³⁷ The alternative has to be real and safe to count. A chance to call the police that exposes the defendant or a family member to the very harm threatened is not an alternative that a reasonably firm person was bound to use.

The same circumstance-by-circumstance inquiry appears outside the Code. Article 31(1)(d) of the Rome Statute requires that a person facing a threat of imminent death or of continuing or imminent serious bodily harm have acted necessarily and reasonably to avoid it. In Prosecutor v. Ongwen the Trial Chamber rejected the defense after looking at all the circumstances confronting the accused, including that he had a realistic possibility of leaving the situation, that he did not face death or serious bodily harm when he disobeyed, and that he committed some of the crimes entirely in private, away from those he blamed for the pressure.³⁸ Each of those findings goes to whether the pressure left any room to choose, which is the question the alternatives factor asks under the Code.

Students lose points here when they treat the three factors as separate requirements, asking whether the offense was minor, whether the threat was deadly, and whether any alternative existed, and then declaring the defense defeated because one answer is unfavorable. The factors are inputs to a single judgment about what a person of reasonable firmness could have resisted, and the fact finder weighs them together.³⁹ An unused alternative lowers the weight of an otherwise grave threat without ending the inquiry, and a serious offense raises the pressure required without forbidding excuse under the Code's test. The opposite error ignores these facts when an exam stem supplies them, since a stem that notes a phone, an unwatched afternoon, or a modest crime is inviting exactly this weighing.

With the defendant's traits and the surrounding circumstances both in view, the reasonable-firmness standard is complete. A defendant who satisfies it can still lose the defense through fault in creating the threat, because the Code withholds duress from an actor who recklessly placed himself in a situation where duress was probable, and the next section takes up that limit.⁴¹