§702-231  Duress.  (1)  It is a defense
to a penal charge that the 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.



(2)  The defense provided by this section is
unavailable if the defendant recklessly placed himself in a situation in which
it was probable that he would be subjected to duress.  The defense is also
unavailable if he was negligent in placing himself in such a situation,
whenever negligence suffices to establish the requisite state of mind for the
offense charged.



(3)  It is not a defense that a person acted on
the command of his or her spouse, unless he or she acted under such coercion as
would establish a defense under this section.



(4)  When the conduct of the defendant would
otherwise be justifiable under section 703-302, this section does not preclude
the defense of justification.



(5)  In prosecutions for any offense described
in this Code, the defense asserted under this section shall constitute an
affirmative defense.  The defendant shall have the burden of going forward with
the evidence 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. [L 1972, c 9, pt of §1; am L 1979, c 183, §1]



 



COMMENTARY ON §702-231



 



  A narrow defense is provided in this section for the
defendant who claims that the defendant's conduct resulted not from the
defendant's own culpability but rather from coercion exercised upon the
defendant by a third party.  It cannot be said that the defendant's conduct is
not "voluntary" as that term is used in the penal law, because the
defendant's conduct does result from the defendant's conscious determination. 
Rather, the basis for permitting the defense is the rationale that the penal
law ought not to condemn that which most persons would do in similar
circumstances.



  The defendant is afforded by this section an affirmative
defense if the defendant engaged in the conduct or caused the result alleged
because of the use or threatened use of unlawful force against the defendant or
another and a person of reasonable firmness would have been unable to resist
such duress.  Although the "reasonable man" standard is employed in a
limited manner, the Code has not invoked a negligence standard for penal
liability in all cases of duress.  The conscious decision to yield in a duress
situation is distinguishable from the inadvertent disregard of unknown risks in
the case of negligence.



  Subsection (2) makes the defense unavailable if the defendant
was culpable in placing the defendant in the position where the defendant would
be subject to duress.



  Subsection (3) abolishes the common-law presumption of
coercion when a woman commits an offense under the direction of her husband. 
The defense is still available to the wife provided she can raise and prove the
issue by evidence.



  The prior law on this subject, H.R.S. §703-5 (as compiled
prior to this Code), provided that a defendant will not be regarded as
responsible for an act "to the doing of which he is compelled by force
which he cannot resist, or from which he cannot escape" if the threatened
or imminent danger is greater than that inflicted by the defendant.  (Emphasis
added.)



 



SUPPLEMENTAL COMMENTARY ON §702-231



 



  Act 183, Session Laws 1979, added subsection (5) which
expressly categorizes duress as an affirmative defense.  Senate Standing
Committee Report No. 883 states:



If any class of
defenses deserves the title of "affirmative," it is those defenses
that admit the commission of the act charged with the necessary mental element,
but seek to interpose the existence of facts that, if true, would provide a
complete exculpation.  The traditional defenses of duress, necessity and
self-defense are common examples.  Unless one is willing to draw the concepts
of volitional act and mental element quite broadly, these defenses do not
negate either concept.  In that respect they are analogous to the common law of
confession and avoidance; they admit the truth of the facts pleaded but offer
an excuse.  36 Ohio State Law Journal 828 at 840-41.



 



Case Notes



 



  Accomplice's testimony regarding other accomplice's prior bad
acts was not relevant to defendant's claim of duress and was, therefore,
inadmissible under HRE rule 402.  101 H. 269, 67 P.3d 768.



  In a prosecution for prostitution, where defendant did not
testify to any use or threat of use of unlawful force against defendant's
person, and defendant acknowledged that officer did not block defendant's exit
and defendant did not attempt to leave the hotel room, it could not be said
that the trial court's finding that defendant failed to establish duress by a
preponderance of the evidence was erroneous.  114 H. 1, 155 P.3d 1102.



  The choice of evils defense under §703-302 and the duress
defense under this section are not, as a matter of statutory law,
inconsistent.  93 H. 399 (App.), 4 P.3d 533.