What is Duress?

Under Nevada law, all persons are capable of committing crimes, with some notable exceptions. Among these exceptions are some familiar criminal defenses. For example, Nevada law specifically provides that for an insanity defense. A person cannot be criminally punished for an act or omission if the act was committed or the omission was made when the person was “in a state of insanity.”

Another defense, known as duress, is available in most cases as a defense to criminal punishment under Nevada law. The defense of duress is available to a person who committed an act or made an omission due to being threatened or menaced. The duress defense contains another requirement – the person who committed the act or made the omission must have had reasonable cause to think that his or her life was in danger, or that he or she would suffer great bodily harm, if he or she did not undertake the criminal act or make the omission.

The duress defense is not available in every case, however. Under NRS 194.010(8), the duress defense is not available if the crime charged is punishable with death.

Application of the Duress Defense; Cabrera v. State

 Recently, in December of 2019 in Cabrera v. State, the Nevada Supreme Court considered the scope of the duress defense and the exception to it for crimes punishable with death.[1]

The defendant in Cabrera case was charged with two counts of first-degree murder, conspiracy to commit murder, attempted murder with the use of a deadly weapon, burglary with the intent to commit murder. A jury found the defendant guilty of all of the charges but did not impose sentence of death. The defendant was sentenced to life in prison without the possibility of parole for the murders and also to various jail terms for the other offenses. The defendant appealed the conviction. The defendant’s argument on appeal was that she should have been allowed to claim duress as a defense to all of the criminal charges. (The defendant was allowed to assert the duress defense to the burglary with intent to commit assault and/or battery charge).

The Nevada Supreme Court held that:

• duress was not an available defense to the first-degree murder charges; and

(The defendant claimed that the duress defense should have been available to her on the murder charges because she was an aider and abettor who did not actually commit the murder (she did not fire the gun). The court disagreed since, under Nevada law, an aider and abettor to murder is liable for the murder as if he or she were the principal actor).

• the defendant should have been allowed to argue duress as a defense to the other charges.

(The court found that the trial should have allowed the defendant to assert the duress defense for the attempted murder, conspiracy to commit murder, and burglary with the intent to commit murder charges. These charges involved an underlying intent to commit murder, but they were not punishable by death).

The Nevada Supreme Court held that the error was not harmless and reversed those of the convictions it held to be erroneous.

If you have questions about criminal defenses, including the duress defense, or want to know more about the Nevada Supreme Court’s decision in Cabrera v. State, contact Lobo Law to speak to a knowledgeable and experienced Las Vegas criminal defense attorney.

Resource:

scholar.google.com/scholar_case?case=12949675651619589463&q=defense+to+crime&hl=en&as_sdt=4,29&as_ylo=2019

[1] 454 P. 3d 722 (2019)

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