How does the government
apply duress and what is the remedy for it?
Black’s Law Dictionary, Sixth
Edition, p. 504:
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]
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
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
v. State of Georgia, 279 U.S. 1 (1929)]
McCune v. Lile, 536 U.S.
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."
States v. Goodwin, 457 U.S. 368 (1982)]