Here's a hypothetical. You're hanging out at your house in Mexico. Two armed men come to your home and tell you to smuggle marijuana across the border or else you and your family will be killed. They tell you that they'll be watching you at the border. They take you away at gunpoint, put you in a car, and tell you to drive. You fear that they're watching you and that, at the slightest misstep, they'll kill your family. You drive to the border.
Assume all those facts are true. Do you have a valid duress defense to present to the jury?
The Ninth Circuit says: "No."
The Ninth Circuit's theory is that you could have avoided this problem by contacting the authorities after the armed intruders initially threatened you, or could have told the police at the border about the threats against you before you tried to enter. There's indeed prior Ninth Circuit precedent that makes that same argument.
But isn't this a little unrealistic? Imagine that this is you. Sure, there's a chance that they won't really kill your family. Sure, there's a chance that you could get the police to arrest the perpetrators. Sure, there's at least the hope that if you tell the authorities everything -- whether at the border or beforehand -- the armed thugs won't pull the trigger and blow your children away. Either because they think (rightly, I might add) that you have betrayed them, or simply because they're pissed off? Like that never happens in Mexico, right? The home of beheaded, tortured civilians.
Sure, there's the possibility that surrender will prevent your family's demise. But is that really what the law requires? As a categorical matter? That because these possibilities exist, you can't argue at all to the jury that you were under duress?
This seems needlessly harsh. Why not trust a jury of twelve reasonable people? They can presumably see the same alleged flaws in defendant's story as the Ninth Circuit can. Is it really an undue risk that a jury will routinely buy these defenses? Especially compared to the risk that, one day, someone will actually do what the Ninth Circuit wants them to do and end up getting their family murdered. That's the right tradeoff?
Let me put it this way. Imagine that its you, and your family. Someone kidnaps your daughter and tells you to deliver some marijuana otherwise they'll kill your kid. You find their threats credible, and also think that if you do what they say, your child will be safe. Sure, maybe they've already released her, and there's a risk that they'll kill her anyway. But you figure the best way of keeping your kid alive is to do what they say. While delivering the drugs, you have to stop for gas and, while going to the bathroom, notice a police officer right next to you. They say you're under surveillance, but no one's in the bathroom. No one can hear what you say to the police. Are you really compelled -- as a matter of law -- to risk your daughter's life and tell the police what you know? Under penalty, say, of a twenty-year mandatory minimum if you don't? Or can you instead be permitted to at least ask the jury to put themselves in your shoes? To see if they'd have made -- and perhaps should make -- the same choices you did given the information you had available to you?
The Ninth Circuit's holding says, essentially: "Tough. You had a chance to surrender. Even if there was an unstated (yet entirely understandable) fear they'd kill your family as a result, we don't care." I'm not sure the law needs to compel such a dangerous choice.
