Florida Standard Jury Instructions-Criminal (FSJI-Cr)
Part 1 General Instructions
3.6(k) DURESS OR NECESSITY
An issue in this case is whether (defendant) acted out of [duress] [necessity] in committing the crime of (crime charged) (lesser included offenses).
It is a defense to the (crime charged) (lesser included offenses) if the defendant acted out of [duress] [necessity]. In order to find the defendant committed the (crime charged) (lesser included offense) out of [duress] [necessity], you must find the following six elements:
1. The defendant reasonably believed [a danger] [an emergency] existed which was not intentionally caused by [himself] [herself].
2.
a. The [danger] [emergency] threatened significant harm to [himself] [herself] [a third person].
Give 2b if escape charged.
b. The [danger] [emergency] threatened death or serious bodily injury.
3. The threatened harm must have been real, imminent, and impending.
Give 4a if escape is not charged.
4.
a. The defendant had no reasonable means to avoid the [danger] [emergency] except by committing the (crime charged) (lesser included offenses).
If escape is charged, the court must first determine whether the defendant has satisfied the conditions precedent enumerated in Muro v. State, 445 So.2d 374 (Fla. 3d DCA 1984), and Alcantaro v. State, 407 So.2d 922 (Fla. 1st DCA 1981), and if so, give 4b.
b. The defendant left [the place of [his] [her] confinement] [the vehicle in which [he] [she] was being transported] [to] [from] [his] [her] work on a public road] because [he] [she] reasonably believed that escape was necessary to avoid the danger of death or serious injury, rather than with the intent to elude lawful authority.
5. The (crime charged) (lesser included offenses) must have been committed out of [duress] [necessity] to avoid the [danger] [emergency].
6. The harm that the defendant avoided must outweigh the harm caused by committing the (crime charged) (lesser included offenses).
Definitions.
“Imminent and impending” means the [danger] [emergency] is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient to prove this defense. Nor can the defendant use the defense of [duress] [necessity] if [he] [she] committed the crime after the danger from the threatened harm had passed.
The reasonableness of the defendant’s belief that [a danger] [an emergency] existed should be examined in the light of all the evidence.
In deciding whether it was necessary for the defendant to commit the (crime charged) (lesser included offenses), you must judge the defendant by the circumstances by which [he] [she] was surrounded at the time the crime was committed.
The [danger] [emergency] facing the defendant need not have been actual; however, to justify the commission of the (crime charged) (lesser included offenses), the appearance of the [danger] [emergency] must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the [danger] [emergency] could be avoided only by committing the (crime charged) (lesser included offenses). Based upon appearances, the defendant must have actually believed that the [danger] [emergency] was real.
If you have a reasonable doubt as to whether the defendant committed the (crime charged) (lesser included offenses) out of [duress] [necessity], you should find the defendant not guilty.
However, if you are convinced beyond a reasonable doubt that the defendant did not commit the (crime charged) (lesser included offenses) out of [duress] [necessity], you should find the defendant guilty if all the elements of the charge have been proved.
Comment
Duress is not a defense to premeditated murder or attempted premeditated murder. See Wright v. State, 402 So. 2d 493 (Fla. 3d DCA 1981) and Cawthon v. State, 382 So. 2d 796 (Fla. 1st DCA 1980). It is unclear whether duress is a defense to other forms of homicide. Review Judge Ervin’s opinion in Chestnut v. State, 505 So. 2d 1352 (Fla. 1st DCA 1987), and the language in Gahley v. State, 567 So. 2d 456 (Fla. 1st DCA 1990), Corujo v. State, 424 So. 2d 43 (Fla. 2d DCA 1982), and Hunt v. State, 753 So. 2d 609 (Fla. 5th DCA 2000).
For the defense of necessity for the charge of Felon in Possession of a Firearm, see State v. Chambers, 890 So. 2d 456 (Fla. 2d DCA 2004) and Marrero v. State, 516 So. 2d 1052 (Fla. 3d DCA 1987).
This instruction was adopted in July 1998 and amended in 2012 [95 So. 3d 868] and 2014.
