NMSC: To Claim Duress, Defendants Must Admit Committing the Crime


The New Mexico Supreme Court issues its fifth published opinion of the year late last week, State v. Ortiz. In a short opinion, Justice Nakamura reiterates the established rule that a defendant is not entitled to the defense of duress unless she admits to committing the criminal act. Unfortunately, in so doing, the Court sidesteps–and, to my mind anyway, highlights the importance of–the questions raised by Judge Sutin in his special concurrence to the court of appeals opinion.


The defendant was alleged to have run over her ex-boyfriend while intoxicated. During trial, she explained that she did so accidentally amid a flurry of chaotic activity precipitated by him making unwanted sexual advances and behaving aggressively. But she also claimed that she did so under duress because the ex-boyfriend had engaged in threatening conduct.

The trial court refused to allow the duress instruction. It noted that the law was settled that her fear of immediate harm had to be viewed together with whether a reasonable person would have acted the same way under the circumstances. The court noted that a reasonable person would not have run over the ex-boyfriend when they could simply have driven away. A jury convicted her of DWI, leaving the scene of an accident, aggravated battery, and great bodily injury by vehicle.

The Court of Appeals

The defendant appealed all of her convictions except leaving the scene of the accident. The court of appeals affirmed the DWI conviction but reversed the battery and great bodily injury by vehicle convictions.

The court of appeals opinion contains a more detailed recitation of the facts. According to the NMCA, the boyfriend had been in the vehicle with defendant against her will. At some point, he exited the passenger side and moved in front of the vehicle on his way to the driver’s side. It was at that point that he was run over. Analyzing the facts from that point of view, the court concluded there was sufficient evidence to give the duress instruction. However, it is worth noting that the court’s analysis of whether a reasonable person would have run over boyfriend is cursory–it simply recites the facts and states that the reasonableness prong was met.

Judge Sutin wrote a special concurrence. Agreeing with the result, he noted that the existing duress cases were problematic. Judge Sutin identified five specific problems, ranging from issues in the case law to inconsistencies in the UJI to the standard of review. His concurrence ended with a plea that the supreme court exercise its discretion to take this case and tackle these issues.

The Supreme Court’s Analysis

The supreme court did indeed take the case, reversing the court of appeals and affirming the district court that the duress instruction was not warranted. From the introduction, it is clear how the court will rule. The court frames duress as a defense of “confession and avoidance,” noting that “one cannot establish that an act is excused without first admitting to the commission of the predicate act.” Under the Court’s discussion of the law, the defendant cannot submit the question of her intent to the jury if she wishes to assert duress. Instead, she must admit the crime in its entirely and submit only the question of duress.

In light of this standard, the Court turns to the evidence from the trial. Strangely, however, the Court’s summary of the evidence is quite different from the court of appeals opinion. The court of appeals focused on the boyfriend exiting the passenger side and moving in front of the vehicle to get to the driver’s side. The supreme court, on the other hand, focuses on the defendant’s statements that the boyfriend, while in the car, grabbed her hand, causing her to jerk the steering wheel and drive over the sidewalk and through the fence. Confusingly, this is what caused the boyfriend to be run over, but he could not be run over while inside the vehicle. Whatever happened here, it is clear that the conflicting testimony presented fact questions for the jury.

The defendant appears to have told this story in support of her theory that she did not intentionally run over the boyfriend. But it is plainly impossible. As Judge Sutin alluded to, the jury rejected this version of the facts, concluding that the defendant had acted intentionally, not accidentally. But the mere fact that the defendant claimed her acts were unintentional (however unlikely that appears) is enough for the supreme court to conclude that she was not entitled to the duress instruction.

Unfortunately, the Court declined to even mention, let alone address any of Judge Sutin’s concerns. If you view the Court’s role as not just deciding cases, but improving the law, this is puzzling. Judge Sutin identified five specific difficulties in the current case law. One, in particular, seems particularly relevant here: that an appellate court must view the facts in the light most favorable to the verdict. The jury found that the defendant had committed these intentional crimes. But the Court, apparently re-weighing the evidence, feels bound to accept Defendant’s (quite probably self-serving) testimony that she drove over her boyfriend accidentally.

The Court does at least leave us with one bright-line, easy-to-apply rule: defendants who wish to claim duress must admit to the crimes and rely solely on the defense to determine the outcome.

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