Duress a Viable Defense to Felony Murder

Can a defendant, charged with felony murder, argue duress as an affirmative defense to the crime? Yesterday, the Michigan Supreme Court answered in the affirmative, overruling two Court of Appeals decisions from the 1990's.  In People v Tiffany Reichard, ___ Mich ___ (Docket No 157688), March 30, 2020, Justice Viviano authored the opinion on behalf of a unanimous court, concluding that the defendant, who wished to present evidence that her boyfriend had physically abused her, could argue in her trial that she committed the underlying felony under duress and, therefore, was not guilty of felony murder.

After bindover on the felony murder charge, Reichard moved the lower court to allow her to present the defense.  The trial court, Judge Thomas Wilson from Jackson County, agreed.  The prosecution filed an interlocutory application to the Court of Appeals which reversed the trial court.

At common law, courts banned the use of duress as a defense to murder.  When faced with the choice of sparing his own life or that of an innocent, the law expects that the defendant choose to spare the innocent person's life rather than his own.  Michigan and several other states follow this principle.

When the charge is felony murder (MCL 750.316(1)(b)), the prosecution must prove a defendant possessed one of the three intents necessary for second degree murder and the intent to commit the underlying offense (or aid or abet another in the commission).  If all elements are satisfied, the crime is elevated to first degree murder.  Duress could, however, be a defense to the underlying crime if it were tried alone, and, if believed, entitle the defendant to an acquittal.  A defendant is not choosing between sparing his life or that of an innocent, he is choosing between committing the underlying crime and his own life.  Therefore, duress could be a viable defense to a charge of felony murder if it is a defense to the underlying crime.  To hold otherwise could lead to an absurd result that a defendant is found not guilty of the underlying offense, but guilty of felony murder.

The Court went further and said that nothing prevents a prosecutor from convicting a defendant of second degree murder or some lesser degree of murder if the facts of the case support it.  Duress is still no defense to murder, only the underlying offense used to elevate lesser forms of murder to first degree.  The Court remanded the case to the trial court for trial with the included instruction on the defense of duress if the defendant chooses and a rational view of the evidence supports it.

The defendant was represented by Michael Faraone of Lansing.  Jackson County APA Jerrold Schrotenboer handled the appeal for the prosecution.