What is the test for an affirmative defense?

MultiRegion, United States of America

The following excerpt is from United States v. Ngono, 17-3194-cr (2nd Cir. 2020):

"A defendant is entitled to an instruction on an affirmative defense only if the defense has a foundation in the evidence." United States v. Gonzalez, 407 F.3d 118, 122 (2d Cir. 2005) (internal quotation marks omitted). Three elements must be satisfied in order for a defendant to establish coercion: "(1) a threat of force directed at the time of the defendant's conduct; (2) a threat sufficient to induce a well-founded fear of impending death or serious bodily injury; and (3) a lack of a reasonable opportunity to escape harm other than by engaging in the illegal activity." Id. "A defendant must make some showing on each element, including the element that the defendant lacked a reasonable means to escape the threatening conduct by seeking the intervention of the appropriate authorities." Id. (internal quotation marks omitted).

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