The Duress Defense\u27s Uncharted Terrain: Applying It to Murder, Felony Murder, and the Mentally Retarded Defendant

This Article explores two issues of first impression in the federal courts raised by a recent Sixth Circuit case: the applicability of the duress defense to felony murder, and whether the mental retardation of the defendant is relevant to such a defense. No federal court has ruled on the applicability of duress to felony murder. A few state courts have so ruled, with mixed results. Prior to the August 2005 Sixth Circuit ruling, no federal court has ruled on the relevance (if any) of mental retardation in meeting the elements of duress. A few federal courts have ruled in the analogous area of battered women\u27s syndrome, with mixed results. Some attention has been given to the general question of whether there should be a duress defense to intentional murder, but none to the distinct question of whether it should be a defense to (non-intentional) felony murder, let alone the question of the relevance of mental retardation to the defense. Scholarship on the issue includes some discussion of cases involving the background of war, and the special type of duress that war provides. These cases raise the question of the relevance of coercion when military personnel follow orders--a question of increasing salience amid the recent controversies concerning the mistreatment of prisoners by U.S. military personnel. Part II of this Article provides general background on the defense, and distinguishes it from the related common-law defense of necessity. Part III argues for a reversal of the common-law rule categorically barring assertion of the defense to the crime of murder. It explains that while a threat to a defendant\u27s life may never justify the act of killing an innocent person, it may excuse a defendant from responsibility for that wrongful act. Part IV argues that even if the law bars the use of duress as a defense to murder, that rule should not apply to a charge of felony murder, especially where the coerced defendant played no direct part in the killing. Among other things, such a result follows from the basic rule that duress can excuse the predicate felony, and liability for the predicate felony is a prerequisite to felony murder liability. Part V argues that duress allows for reasonable mistakes regarding the presence of a threat and the absence of lawful alternatives. It also argues that evidence of mental retardation and other cognizable physical and mental disabilities should be relevant, even under the duress defense\u27s objective, reasonable person standard

The Bright Line\u27s Dark Side: Pre-Charge Attachment of the Sixth Amendment Right to Counsel

In this Article, Professor Mulroy discusses a current circuit split over whether the Sixth Amendment right to counsel can ever attach prior to a prosecutor filing a formal charge (i.e., an indictment or information). Relying on language in several Supreme Court opinions, some lower courts impose a bright-line rule stating that unless there has been such a formal charge (or unless the defendant has appeared before a judge), the right can never attach, in part because the Sixth Amendment’s text refers to a “criminal prosecution” and an “accused.” This rule can lead to harsh results—e.g., where a prosecutor takes advantage of an uncounseled defendant in pre-indictment plea negotiations, or where defense counsel in such negotiations provides unprofessional service, but there can be no claim for ineffective assistance of counsel. The Article argues against a bright-line rule. Professor Mulroy argues that a proper understanding of the Amendment’s text, the language of the relevant Supreme Court opinions explaining the underlying reasons for right to counsel protection, and pragmatic considerations of basic fairness all support a pre-charge right to counsel in at least some circumstances. He proposes a new rule: the right attaches whenever a prosecutor is involved in substantive communications with a defendant, either directly or through defense counsel. This rule would apply to: pre-charge plea and other negotiations; subpoenaed grand jury testimony; pretrial depositions taken pursuant to Rule 15 of the Federal Rules of Criminal Procedure; and similar situations. It derives analogous support from the “no contact” ethical requirement of Model Rule 4.2, and, as applied to custodial interrogations, harmonizes Sixth Amendment doctrine with Fifth Amendment case la