Florida State University Journal of Transnational Law & Policy


The defenses of duress and provocation can be analogized as concessions to human frailty. Both defenses are predicated upon "confession and avoidance." In each scenario, the defendants actually admit the completion of the actus reus with the attendant mens rea (confession) but seek to excuse their conduct to deny criminal liability (avoidance). Essentially, both defenses involve a concoction of excuse, moral involuntariness, and human frailty. They focus attention on legitimate societal expectations of the reasonable man in criminal law. Unfortunately, the Anglo-American tradition, vis a vis these defenses, is replete with vagaries, inconsistencies, and anomalies. Comparing these defenses in English and United States law, this article urges detailed consideration and reform of the two defenses. The salutary lessons from recent jurisprudence show that a more compassionate and logical approach, which reflects an enhanced role for jury determination of excusing conduct, must be established.