I. Definition: Criminality ("Offense")
in general: Does the penal code apply (jurisdiction)?
are the elements of the offense as defined?
Objective Offense Elements (Actus Reus)
2. Does the behavior satisfy each element of the offense?
- omission [§13]
- imputation/derivative liability [§§25-31]
- instruments [§25]
(d) Mode of Culpability (w/ respect to each element)
mistake "of fact" [§16]
(e) Inchoate Crimes
(i) attempt [§22]
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]
necessity (circumstancial duress)
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.
B. Was the accused incapable of exercising his capacity for culpable conduct? (inability/impossibility/unavoidability)
1. duress [§35]
provocation (homicide only)
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.]