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Legal Topics

What is criminal liability? — Legal glossary

Sneha Solanki  

· 10 minute read

Sneha Solanki  

· 10 minute read

Definition and resources for defense attorneys

Legal termscriminal law • criminal liability


Criminal liability is a legal concept that holds individuals responsible for their actions or omissions if they are found to have committed a criminal act. Criminal liability differs from civil liability, which is based on the breach of a contract or tort. To be considered criminally liable, an individual must have acted with intention or negligently and thus there must be both an actus reus and mens rea.

Criminal liability is a complex concept that can have far-reaching legal implications. This article will provide an in-depth look at the concept of criminal liability, its various forms, and the legal consequences that may result from it.

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General principles

Burden of proof


Types of criminal liability

Vicarious criminal responsibility

Mental health

Legal consequences

General principles of criminal law

The legal maxim “actus non facit reum, nisi mens sit rea” is a cornerstone of penal liability, emphasizing that guilt cannot be established solely based on an action — it must be accompanied by a guilty state of mind, known as “mens rea.”

Actus reus

Actus reus is a fundamental concept in criminal liability, often referred to as the “guilty act.” This Latin term encapsulates the external or objective component of a criminal offense. Essentially, it pertains to the actions or omissions that constitute the physical aspects of a crime, as defined by statute.

Mens rea

In contrast, mens rea — another cornerstone principle in criminal liability — translates to the “guilty mind.” This Latin expression signifies the mental element of an individual’s intent to engage in criminal conduct. The mental state is a crucial component when assessing criminal behavior.

Therefore, mens rea serves as the driving force behind the commission of a crime. It reflects an individual’s cognitive state and their awareness of the wrongful nature of their actions.

Burden of proof

The burden of proof in legal proceedings determines the standard required to establish a fact in court. In criminal cases, the prosecution must prove guilt beyond a reasonable doubt, while civil cases demand proof by a preponderance of the evidence.

This burden comprises two aspects — the burden of production such as presenting evidence, and the burden of persuasion like the convincing the fact-finder. Various standards exist, such as clear and convincing evidence, probable cause, reasonable suspicion, and more, each tailored to specific legal contexts.

These standards ensure fairness and accuracy in legal outcomes by aligning the burden of proof with the nature of the case and jurisdiction.


Criminal liability law acknowledges situations where a person, despite engaging in a criminal act, should not be held accountable for it. This includes individuals who, due to mental incapacity, lack the culpability required for criminal guilt.

Another group exempted from certain criminal liability is minors. The underlying rationale is that these individuals cannot form the necessary intent for it to be just to hold them responsible for the crime. In essence, they are responsible for their actions but not legally liable due to their incapacity to meet the required intent standard.


Force — Individuals can use force, even deadly force, to protect themselves from immediate physical injury, but the amount of force used must be proportionate to the threats they face. A reasonable defense applies when the force used was reasonable, while an imperfect defense may negate the intent by showing that the person had an unreasonable belief in the face of a deadly threat.

Necessity — This defense may be raised when an individual acts unlawfully in an emergency to prevent further serious harm. The threat is there, there are no alternatives, the damage caused by their actions should not be greater than it would have been and they also should not be held responsible for creating the dangerous situation.

Insanity — Different tests are used to determine if the defendant is not guilty by reason of insanity. These include the M’Naghten law (inability to distinguish between right and wrong), irresistible emotional experimentation (loss of control due to mental illness), the Durham law (guilty by reason of dementia), and the Model Penal Code (incapacity and criminal conduct).

Intoxication — Alcohol may cause a defendant to prevent comprehending the consequences from hearing the nature of their actions or if their actions were inappropriate. However, this defense is limited in use and generally does not apply to conventional crimes.

Consent can be a defense in cases of physical injury, especially in physical contact sports. It generally does not apply when there is serious bodily injury, the injury must be reasonably anticipated given the nature of the activity to which the victim consented, and the injured party may also benefit some from communication to use to protect himself from the consent.

Coercion can be caused when another person pressures the defendant to commit a crime by threats or actual use of physical force. The defendant must face a credible threat of serious bodily harm, believe that the threat will be carried out, have no other recourse or other recourse is generally irrelevant in the case of murder.


Criminal liability varies depending on jurisdiction and the type of crime committed. For example, some states may consider certain acts as felonies while other states may not recognize them as such. It is therefore important to understand jurisdictional differences when it comes to criminal law.

Additionally, different types of crimes carry different levels of punishment – ranging from misdemeanors that may result in probation or community service to felonies that can lead to prison time or even death sentences in some jurisdictions.


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Types of criminal liability

Those accused of a crime should become aware of the various types of criminal liability that may be applicable in their case, as each carries its own implications.

Strict liability

The first type is strict liability, where someone can be held responsible for committing a crime without needing to prove any blameworthy conduct. An example would be laws governing sales of alcohol to minors. For instance, even if the seller was not aware of the customer’s age, they could still face legal action.


Negligence is another form which does not require intent but focuses on whether the accused should have been aware that their actions were illegal or posed risks to others. For instance, failing to secure hazardous materials can lead to criminal charges in certain cases even if there was no malicious intent behind it.

Intent requires proof that someone deliberately and knowingly violated the law with malicious intent or disregard for others’ safety and wellbeing. This could include arson or murder where clear evidence exists that someone intended to cause harm through their actions.

Vicarious criminal responsibility

Finally, vicarious criminal responsibility occurs when one person is held liable for another’s actions in certain jurisdictions, often when an employer has failed in their duty to protect employees from breaking the law while carrying out job duties. Parental responsibility may also qualify as vicarious criminal liability depending on jurisdiction and circumstances involved in each case.

Educating oneself about these different forms of criminal liabilities can help individuals become more informed about their rights under the law and make better decisions within society while respecting boundaries set by authorities when necessary.

Criminal liability and mental health

When it comes to criminal liability, mental health greatly impacts the outcome of cases. The principle of insanity is often used as a defense in criminal cases — the idea that someone cannot be held criminally liable if they were unable to understand the wrongfulness of their actions due to mental illness or incapacity. This can be difficult to prove and may require expert psychiatric testimony in court.

Mental health issues can also increase the severity of sentences in some jurisdictions. For example, someone with an undiagnosed mental illness may not receive treatment for their condition while incarcerated, leading to further complications and potential harm for themselves and others. In some cases, a person’s mental health condition may even lead to longer sentences than those without such conditions.

In response to this, many countries have begun implementing alternative sentencing programs for those with mental health issues who have committed crimes. These programs provide individuals with needed treatment and resources instead of incarceration, helping them get back on their feet while avoiding potentially detrimental long-term consequences associated with jail time. Such programs can also help reduce recidivism rates among those suffering from mental illnesses by providing them with the support they need so they are less likely to reoffend in the future.

Legal consequences of criminal liability can be severe and far-reaching. Depending on the type and severity of the crime, penalties can range from fines to jail time.  

For cases that involve more serious crimes, harsher punishments may be imposed, such as life imprisonment or even the death penalty 

Aside from confinement, an individual who is convicted of a crime may also face professional consequences such as the revocation of their license or loss of their job.   

Individuals convicted of a crime may have to forfeit property or assets acquired through illegal means. This includes money gained from criminal activities and any other tangible items used in the commission of a crime.  

Furthermore, a conviction for a crime can result in the creation of a permanent criminal record which could negatively affect future employment opportunities and eligibility for certain government benefits.  

For the most up-to-date information on criminal liability, get your free trial of Practical Law for content written and maintained by experienced attorneys. 


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