DURESS

DURESS The defendant has raised the affirmative defense of duress. Before you may consider duress, you must first determine whether the prosecution has proven all of the elements of (specify in the disjunctive charge(s) and any instructed included offense(s)) beyond a reasonable doubt. If you unanimously find that the prosecution has not proven all of the elements of (specify in the disjunctive charge(s) and any instructed included offense(s)) beyond a reasonable doubt, then you must find the defendant not guilty of that offense(s) without considering duress. If you unanimously find that the prosecution has proven all of the elements of (specify in the disjunctive charge(s) and any instructed included offense(s)) beyond a reasonable doubt, then you must consider duress. Duress is an affirmative defense to the charge(s) of (specify in the disjunctive charge(s) and any instructed included offense(s)). Duress has (specify number) elements. These (specify number) elements are: 1. The defendant engaged in the conduct or caused the result alleged in the Indictment/Complaint because the defendant was coerced to do so by the threat to use or use of unlawful force against the defendant’s person [or another person]; 2. The unlawful force used or threatened to be used was the type that a person of reasonable firmness in the defendant’s situation would have been unable to resist; 3. The defendant did not recklessly place himself/herself in the situation in which it was probable that the defendant would be subjected to duress; [__. When negligence suffices to establish the required state of mind for the offense charged, the defendant did not negligently place himself/herself into a situation in which it was probable that the defendant would be subjected to duress;] [__. When the defendant acted on the command of a spouse, the defendant still must prove by a preponderance of the evidence the previous elements.] “Force” means any bodily impact, restraint, or confinement, or threat to do the same. “Unlawful force” means force that is used without the consent of the person against whom it is directed and the use of which would constitute an unjustifiable use of force [or deadly force]. The defendant must prove an affirmative defense by a preponderance of the evidence. This means that the defendant must prove that it is more likely than not, or more probable than not, that each element of duress occurred. In determining whether the defendant has proven duress by a preponderance of the evidence, you must consider all of the evidence that has been presented to you regardless of who presented it. If you unanimously find that the defendant has proven the elements of the duress defense by a preponderance of the evidence, then you must find the defendant not guilty of (specify in the disjunctive charge(s) and any instructed included offense(s)). If you unanimously find that the defendant has not proven the elements of duress by a preponderance of the evidence, then you must find the defendant guilty of (specify charge(s) or any instructed offense(s)).* If you are unable to reach a unanimous agreement as to whether duress has been proved or not been proved, then a verdict may not be returned on (specify in the disjunctive charge(s) and any instructed included offense(s)). *Modification of this sentence is required if any defense in addition to duress is submitted to the jury. Commentary HRS § 702-231 provides for an affirmative defense of "duress" where "defendant engaged in the conduct or caused the result alleged because he was coerced to do so by the use of, or a 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." In 1979, HRS § 702-231 was amended to make duress an affirmative defense, requiring a defendant to prove "the facts constituting such defense, unless such facts are supplied by the testimony of the prosecuting witness or circumstance in such testimony, and of proving such facts by a preponderance of the evidence pursuant to Section 701-115." See HRS § 702-231(5); State v. Corpuz, 3 Haw.App. 206, 646 P.2d 976 (1982). Since duress is an affirmative defense, the defendant has the burden of going forward with the evidence to prove facts constituting the defense and of proving such facts by a preponderance of the evidence. State v. Fukusaku, 85 Hawai`i 462, 946 P.2d 32 (1997) (trial court properly refused to give duress instruction where there was no evidence that any member of organized crime used unlawful force or threatened to use force against defendant).