Three-Level Analysis of Criminal Liability
(Codes, Cases, Commentary)*
• LAW (punishability)
I. Criminality (Definition; “Offense”) (click here)
II. Illegality (Justification; “Defenses” pt. 1) (click here)A. in general: Does the penal code apply (jurisdiction)? (click here)B. in particular: Does the behavior meet the definition of a particular criminal offense defined in the penal code? (click here) (see principles of legislativity & prospectivity)
1. What are the elements of the offense as defined?(a) Conduct (click here)2. Does the behavior satisfy each element of the offense?
- minimum requirement for all offenses (act requirement)
(b) Circumstances
- may be required (see specificity principle)
- e.g.: nature of offender (public servant, §240.5)* or of victim (human being, §210.1), legality (§212.1), time (§221.1), place (§250.5), consent (§223.9), justification (§230.3)
(c) Result
- not required (e.g., §223.6); only in result-offenses (e.g., §§210.1, 224.14)
(d) Mode of Culpability (w/ respect to each element) (click here)
- not required (strict liability)
- rules of interpretation (§§1.02(3), 2.02(3), (4), 2.05) (see principle of lenity)
- e.g.: purpose (intention), knowledge, recklessness, (criminal) negligence
(§2.02), wilfulness (§2.02(8)) (see comparative chart)(a) Conduct (click here)
- act
- voluntariness
- omission (click here)
- imputation (click here)
- instruments
- complicity
- corporate actors (click here)
(b) Circumstances
(c) Result
- causation (click here)
- but for
- proximate
(d) Mode of Culpability (w/ respect to each element)
- mistake re: presence of offense elements (click here)
- intoxication (click here)
- diminished capacity (click here)
Is the criminal conduct unlawful generally speaking? (was the law violated?)
Is the facially criminal conduct justifiable?A. general justification (choice of evils; necessity) (click here)B. specific justification
1. execution of public dutyC. mistake re: presence of justification elements (click here)
2. self-defense (click here)
3. defense of another
4. defense of property
5. use of force in law enforcement (click here)
6. supervisory position (parent, teacher, warden, conductor, surgeon)
7. (justificatory) consent
8. (justificatory) compliance with military orders (click here)
• MERCY (punishment)
III. Inculpation (Excuse; “Defenses” pt. 2) (click here)
Can the accused be held culpable for the facially criminal and unlawful conduct?A. Was the accused incapable of culpable conduct (incapacity)?1. insanity (click here)B. Can the accused be excused (impossibility; avoidability)?
- (exculpatory) intoxication (generally not available; but see I. (intoxication))
2. infancy1. duress (click here)
- personal
- circumstantial (generally not available, but see II. (choice of evils; necessity))
2. provocation (extreme emotional disturbance) (click here)
3. (exculpatory) compliance with military orders (click here)
4. entrapment (click here)
5. mistakes
- unreasonable (reckless, negligent), yet exculpatory, mistakes re: conditions of justification (click here)
- (exculpatory) ignorance/mistake of law (click here)