Fan on Duress

Mary D. Fan (University of Washington - School of Law) has posted The Reasonable Immigrant and the Fake Cop: Duress in Nwoye (in Feminist Judgments: Rewritten Criminal Law Opinions (Bennett Capers, Sarah Deer, Corey Rayburn Young, eds. forthcoming Cambridge University Press, 2021)) on SSRN. Here is the abstract:

 

Duress is a longstanding defense that injects empathy and humanity into the criminal law for people in desperate situations. The right to present a duress defense should be equal for everyone but in practice there is a judicial blindness to the situation of vulnerable people and communities in the United States who fear turning to the state for help. In United States v. Nwoye, the trial court’s erroneous preclusion of Queen Nwoye’s attempt to argue duress exemplifies the refusal to recognize that jurors properly instructed about duress may find that a vulnerable person reasonably feared to seek help from law enforcement. The error was compounded when the decision on direct appeal treated Nwoye’s fear about going to police for help as an unreasonable failure that requires some sort of syndrome to explain.

Judge and now Justice Bret Kavanaugh’s decision in Nwoye will be justly lauded as one of his notable opinions.

Unfortunately, because of the posture of the case, on a post-conviction motion to vacate, he had to characterize the error as one of ineffective assistance of counsel for failure to retain a battered women syndrome expert. The real error is not with defense counsel, who often have to suffer the slings and arrows of ineffective assistance claims by clients seeking postconviction relief after losing on direct appeal. The error is the recurring refusal of courts to recognize that jurors may find that going to U.S. officials for help is not a reasonable option for a person in the defendant’s position. Nwoye got a second chance at a fair trial thanks to Judge Kavanaugh’s decision. But others who are not battered, nor a woman, or otherwise do not fit into the exceedingly confining “battered woman syndrome” box have received no relief despite deprivation of the right to present a defense.

The reality is that the reason why people do not seek help from law enforcement when threatened often is not a battered woman syndrome—it is unequal access to protection and the ability to trust the state. A person on trial with liberty and life at stake should have the right to present these realities far different from the experience of persons fortunate enough to become judges, who may have blind spots in empathy and legal interpretation.