State v. Toscano

Supreme Court of New Jersey · 1977 · Criminal Law

Criminal LawDuressAffirmative Defensesduressaffirmative defensereasonable firmnessunlawful forcethreats

Facts

Toscano, a chiropractor, admitted making out a false medical report to support a fraudulent insurance claim, but said he did so only after William Leonardo threatened that Toscano and his wife would "jump at shadows" when leaving the dark entrance to his office. Toscano testified that Leonardo sounded vicious and desperate, that he feared for his and his wife's bodily safety, and that he complied without receiving any compensation. Afterward, Toscano moved, changed his phone number, and unsuccessfully sought a gun permit. The trial judge excluded further duress evidence and refused a duress instruction because the threat was not sufficiently "present, imminent and impending."

Issue

Whether duress is an affirmative defense to a crime other than murder, and if so, whether the defense requires proof of a threat of immediate, present, and impending death or serious bodily harm before the jury may consider it. Also, whether Toscano presented enough evidence to require a duress instruction.

Rule

Duress is a defense to a crime other than murder if the defendant engaged in the conduct because he was coerced by the use of, or threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist. The trial judge should no longer make a preliminary determination that the threat was "present, imminent and impending" as a threshold requirement; instead, factors such as immediacy, gravity of harm, seriousness of the crime, identity of the person endangered, possibilities of escape or resistance, and opportunities to seek official help are for the jury to weigh. The defendant bears the burden of persuasion on duress and must prove it by a preponderance of the evidence.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Newark, Dana Mercer, an office manager at Harbor Crest Logistics, altered payroll records to divert money to a gang associate. Dana admits the alteration but testifies that two days earlier a gang member threatened to break her brother's legs if she refused.

If Dana is prosecuted for fraud, which is the strongest statement of the governing rule on her duress claim?

Explanation. The majority held that duress is an affirmative defense to crimes other than murder if the defendant acted because of the use of, or threat to use, unlawful force against the defendant or another, which a person of reasonable firmness in the defendant's situation would have been unable to resist. The old strict requirement of a literally immediate threat is not a threshold bar; timing is one factor for the jury.