How does the
government apply duress and what is the remedy for it?
Black’s Law
Dictionary, Sixth Edition, p. 504:duress.
Any unlawful threat or
coercion used by a person to induce another to act (or to refrain from
acting) in a manner he or she otherwise would not (or would).
Subjecting person to improper pressure which overcomes his will and
coerces him to comply with demand to which he would not yield if acting as
free agent. Head v. Gadsden
Civil Service Bd., Ala.Civ.App., 389 So.2d 516, 519.
Application of such pressure or constraint as compels man to go
against his will, and takes away his free agency, destroying power of
refusing to comply with unjust demands of another.
Haumont v. Security State Bank, 220 Neb. 809, 374 N.W.2d 2,6.
…
A contract entered into under duress by physical compulsion is void.
Also, if a party’s
manifestation of assent to a contract is induced by an improper threat by
the other party that leaves the victim no reasonable alternative, the
contract is voidable by the victim. Restatement, Second, Contracts §§174, 175.
As a defense to a civil action, it must be pleaded affirmatively.
Fed.R.Civil P. 8(c ).
As an affirmative defense in criminal law, one who, under the pressure
of an unlawful threat from another human being to harm him (or to harm a
third person), commits what would otherwise be a crime may, under some
circumstances, be justified in doing what he did and thus not be guilty of
the crime in question. See
Model Penal Code §2.09. See
also Coercion; Economic duress; Extortion; Undue influence.
[Black’s Law
Dictionary, Sixth Edition, p. 504]
American Jurisprudence, Duress, Section 21
“An agreement [consent] obtained by duress,
coercion, or intimidation is invalid, since the party coerced is not
exercising his free will, and the test is not so much the means by
which the party is compelled to execute the agreement as the state
of mind induced.
Duress, like fraud, rarely becomes material, except where a contract
or conveyance has been made which the maker wishes to avoid. As a
general rule, duress renders the contract or conveyance voidable,
not void, at the option of the person coerced,
and it is susceptible of ratification. Like other voidable
contracts, it is valid until it is avoided by the person entitled to
avoid it.
However, duress in the form of physical compulsion, in which a party
is caused to appear to assent when he has no intention of doing so,
is generally deemed to render the resulting purported contract void.
”
[American Jurisprudence 2d, Duress, Section 21]
Barnette v Wells Fargo Nevada Nat'l Bank, 270 US 438, 70 L Ed
669, 46 S Ct 326 (holding that acts induced by duress which operate
solely on the mind, and fall short of actual physical compulsion,
are not void at law, but are voidable only, at the election of him
whose acts were induced by it); Faske v Gershman, 30 Misc 2d 442,
215 NYS2d 144; Glenney v Crane (Tex Civ App Houston (1st Dist)) 352
SW2d 773, writ ref n r e (May 16, 1962); Carroll v Fetty, 121 W Va
215, 2 SE2d 521, cert den 308 US 571, 84 L Ed 479, 60 S Ct 85.
Faske v Gershman, 30 Misc 2d 442, 215 NYS2d 144; Heider v Unicume,
142 Or 416, 20 P2d 384; Glenney v Crane (Tex Civ App Houston (1st
Dist)) 352 SW2d 773, writ ref n r e (May 16, 1962)
Restatement 2d, Contracts § 174, stating that if conduct that
appears to be a manifestation of assent by a party who does not
intend to engage in that conduct is physically compelled by duress,
the conduct is not effective as a manifestation of assent.
[American Jurisprudence, Duress, Section 21]
Manley v. State of Georgia, 279 U.S. 1 (1929)
State legislation declaring that proof of one fact or a group of
facts shall constitute prima facie evidence of the main or ultimate
fact in issue is valid if there is a rational connection between
what is proved and what is to be in-
[279 U.S. 1, 6] ferred. If the
presumption is not unreasonable and is not made conclusive of the
rights of the person against whom raised, it does not constitute a
denial of due process of law. Mobile, J. & K. C. R. R. v. Turnipseed,
219 U.S. 35, 43 , 31 S. Ct. 136, 32 L. R. A. (N. S.) 226,
Ann. Cas. 1912A, 463. A prima facie presumption casts upon the
person against whom it is applied the duty of going forward with his
evidence on the particular point to which the presumption relates. A
statute creating a presumption that is arbitrary or that operates to
deny a fair opportunity to repel it violates the due process clause
of the Fourteenth Amendment. Bailey v. Alabama,
219 U.S. 219 , 233 et seq., 31 S. Ct. 145. Mere legislative flat
may not take the place of fact in the determination of issues
involving life, liberty or property. 'It is not within the province
of a legislature to declare an individual guilty or presumptively
guilty of a crime.' McFarland v. American Sugar Co.,
241 U.S. 79, 86 , 36 S. Ct. 498, 501 (60 L. Ed. 899).
The presumption here involved does not rest upon any
definite basis. It is raised upon proof of any one or more of the
conditions described as insolvency and without regard to the facts
from which such condition resulted. The statute does not
specify the elements of the offense; and so the inference is not
restricted to any particular point or specific issue. The facts so
to be presumed are as uncertain and vague as the terms 'fraudulent'
and 'fraud' contrasted with 'fairly,' 'legally,' 'honestly,' and 'in
accordance with law,' when used to describe the management of a
bank. Connally v. General Construction Co., 26. U. S. 385, 391, 46
S. Ct. 126. Cline v. Frink Dairy Co.,
274 U.S. 445, 454 , 47 S. Ct. 681. Nor is the generality
of the presumption aided by the allegations of the accusation. The
indictment merely follows the general words of the statute without
specifying facts to disclose the nature or circumstances of the
charge. Snead v. State, supra, 165 Ga. 54, 139 S. E. 812.
And see United States v. Cruikshan,
92 U.S. 542 , 562. And as to guilt, also, the presumption
is sweeping. It extends
[279 U.S. 1, 7] to all directors. There may be from 3
to 25. The president is required to be a director.
The presumption extends to the corpus delicti, as well as to the
responsibility of the president or director accused. The proof
which makes a prima facie case points to no specific transaction,
matter or thing as the cause of the fraudulent insolvency or to any
act or omission of the accused tending to show his responsibility.
He is to be convicted unless he negatives every fact, whether act or
omission in the management of the bank, from which fraudulent
insolvency might result, or shows that he is in no way responsible
for the condition of the bank.
Inference of crime and guilt may not reasonably be drawn from
mere inability to pay demand deposits and other debts as they
mature. In Goergia banks are permitted to lend up to 85 per cent. of
their deposits. Unforeseen demands in excess of the reserves
required do not tend to show that the crime created by section 28
has been committed. The same may be said as to the other conditions
defined as insolvency. The connection between the fact proved
and that presumed is not sufficient. Reasoning does not lead from
one to the other. Hawes v. Georgia,
258 U.S. 1, 4 , 42 S. Ct. 204. The presumption created by
section 28 is unreasonable and arbitrary. Bailey v. Alabama, supra;
McFarland v. American Sugar Co., supra.
[Manley v. State of Georgia, 279 U.S. 1 (1929)]
McCune v. Lile, 536 U.S. 24 (2002)
Since Malloy, we have construed the text to prohibit not only
direct orders to testify, but also indirect compulsion effected by
comments on a defendant's refusal to take the stand, Griffin v.
California, 380 U.S. 609, 613-614 (1965), and we have recognized
that compulsion can be presumed from the circumstances surrounding
custodial interrogation, see Dickerson v. United States, 530 U.S.
428, 435 (2000) ("[T]he coercion inherent in custodial interrogation
blurs the line between voluntary and involuntary statements, and
thus heightens the risk that an individual will not be `accorded his
privilege under the Fifth Amendment . . . not to be compelled to
incriminate himself'") (quoting Miranda v. Arizona, 384 U.S. 436,
439 (1966)). Without requiring the deprivation of any other liberty
interest, we have found prohibited compulsion in the threatened loss
of the right to participate in political associations, Lefkowitz v.
Cunningham, 431 U.S. 801 (1977), forfeiture of government contracts,
Lefkowitz v. Turley, 414 U.S. at 82, loss of employment, Uniformed
Sanitation Men Assn., Inc. v. Commissioner of Sanitation of City of
New York, 392 U.S. 280 (1968), and disbarment, Spevack v. Klein, 385
U.S. 511, 516 (1967). None of our opinions contains any suggestion
that compulsion should have a different meaning in the prison
context. Nor is there any support in our Fifth Amendment
jurisprudence for the proposition that nothing short of losing one's
livelihood is sufficient to constitute compulsion. Accord, Turley,
414 U.S. at 83.
[McCune v. Lile, 536 U.S. 24 (2002)]
United States v. Goodwin, 457 U.S. 368 (1982)
The Court attempts to denigrate respondent's claim by asserting
that this case "involves presumptions," ante at 369, and by
arguing that "there is no evidence in this case that could give rise
to a claim of actual vindictiveness," ante at (emphasis in
original). By casting respondent's claim in terms of a "mere" legal
presumption, the Court hopes to make that claim appear to be unreal
or technical. But such an approach is contrary to the letter and
spirit of Blackledge. There we focused upon the accused's
"apprehension of . . . retaliatory motivation," 417 U.S. at , and we
held that the Due Process Clause is violated when situations
involving increased punishment "pose a realistic likelihood of
`vindictiveness,'" id. at 27. In such situations, the criminal
defendant's apprehension of retaliatory motivation does not amount
to an unreal or technical violation of his constitutional rights. On
the contrary, as we recognized in North Carolina v. Pearce, 395 U.S.
711, (1969), "the fear of such vindictiveness may unconstitutionally
deter a defendant's exercise" of his rights.
The Court does not contend that Blackledge is inapplicable to
instances of pretrial as well as post-trial vindictiveness. But
after examining the record before us for objective indications of
such vindictiveness, the Court concludes, ante at382, that "a
presumption of vindictiveness is not warranted in this case." With
all respect, I disagree both with the Court's conclusion and with
its reasoning. In my view, the question here is not one of
"presumptions." Rather, I would analyze respondent's claim in the
terms employed by our precedents. Did the elevation of the
charges against respondent "pose a realistic likelihood of
`vindictiveness?'" See Blackledge v. Perry, 417 U.S. at 27. Is it
possible that "the fear of such vindictiveness may
unconstitutionally deter" a person in respondent's position from
exercising his statutory and [457 U.S. 390] constitutional right to
a jury trial? See North Carolina v. Pearce, supra, at 725.
The answer to these questions is plainly "Yes."
The Court suggests, ante at 383, that the distinction between a
bench trial and a jury trial is unimportant in this context. Such a
suggestion is demonstrably fallacious. Experienced criminal
practitioners, for both prosecution and defense, know that a jury
trial entails far more prosecutorial work than a bench trial.
Defense challenges to the potential juror array, voir dire
examination of potential jurors, and suppression hearings all take
up a prosecutor's time before a jury trial, adding to his scheduling
difficulties and caseload. More care in the preparation of his
requested instructions, of his witnesses, and of his own remarks is
necessary in order to avoid mistrial or reversible error. And there
is always the specter of the "irrational" acquittal by a jury that
is unreviewable on appeal. Thus it is simply inconceivable that a
criminal defendant's election to be tried by jury would be a matter
of indifference to his prosecutor. On the contrary, the prosecutor
would almost always prefer that the defendant waive such a
"troublesome" right. And if the defendant refuses to do so, the
prosecutor's subsequent elevation of the charges against the
defendant manifestly poses a realistic likelihood of vindictiveness.
The truth of my conclusion, and the patent fallacy of the
Court's, is particularly evident on the record before us. The
practical effect of respondent's demand for a jury trial was that
the Government had to transfer the case from a trial before a
Magistrate in Hyattsville to a trial before a District Judge and
jury in Baltimore, and had to substitute one prosecutor for another.
The Government thus suffered not only administrative inconvenience;
it also lost the value of the preparation and services of the first
prosecutor, and was forced to commit a second prosecutor to prepare
the case from scratch. Thus, just as in Blackledge, respondent's
election [457 U.S. 391] had the effect of "clearly requir[ing]
increased expenditures of prosecutorial resources before the
defendant's conviction" could finally be achieved. 417 U.S. at
27. And, to paraphrase Blackledge,
if the prosecutor has the means readily at hand to
discourage such [elections] by "upping the ante" through a
felony indictment . . . -- the State can insure that only the
most hardy defendants will brave the hazards of a [jury] trial.
Cf. id. at 27-28. I conclude that the facts of this case easily
support the inference of "a realistic likelihood of vindictiveness."
[United States v. Goodwin, 457 U.S. 368 (1982)]
|
