A. Liability I. Definition: Criminality ("Offense") A.
in general: Does the penal code apply (jurisdiction)?
[§§3-7] 1. What
are the elements of the offense as defined? a)
Objective Offense Elements (Actus Reus)
2. Does the behavior satisfy each element of the offense?
- act - voluntariness - omission [§13] - imputation/derivative liability [§§25-31] - instruments [§25] -
complicity [§§26-31] (b) Circumstances -
e.g., consent (c) Result -
causation (d) Mode of Culpability (w/ respect to each element) (i)
mistake "of fact" [§16] (e) Inchoate Crimes (i) attempt [§22] (ii) counselling II. Justification: Illegality/Unlawfulness/Wrongness ("Defense")
Is the criminal conduct unlawful generally speaking?
(was the law violated?) A. in general (nature of justification; justification vs. excuse) B. specific defenses 1. law administration and enforcement [StPO §127] 2. authority [BGB §1631] 3. defense (self; another; property) [§§32-33] 4. consent 5.
necessity (circumstancial duress)
[§34] C. reasonable mistake re: satisfaction of justification element (self defence) III. Excuse: Inculpation/Responsibility/Accountability/Blameworthiness ("Defense")
Can the accused be held culpable for the facially criminal conduct? A. Did the accused lack the capacity for conduct (incapacity)? 1. insanity [§20] -
(exculpatory) intoxication (not available; but see I.
(intoxication)) 2.
infancy [§19] B. Was the accused incapable of exercising his capacity for culpable conduct? (inability/impossibility/unavoidability) 1. duress [§35] (a)
personal 2.
provocation (homicide only) - complicity 6. mistake (ignorance) "of law" [§17] (a) reliance on official misstatement (b) unreasonable mistake re: satisfaction of justification element
I. Principles of Sentencing [§46] II. Measures of
Rehabilitation and Incapacitation [§§61ff.]
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