Before getting into the distinction between justification and excuse, it is important to note that these are two different categories of defenses one could make. A defense is a set of circumstances that one could argue precludes a conviction. Here are those categories with a brief overview of them.

  1. Failure of Proof Defense
    • The elements of a crime are not met. In other words, the facts negate the element (think Mistake of Fact or Law)
  2. Offense Modification
    • This occurs when the defendant provides additional details that might expel them form the crime. For instance, a father paying a random for his kidnapped child cannot be found guilty of being an accomplice in the accomplishment of the crime. Simply, they are not the person who caused the evil.
  3. Justifications
    • The crime committed was done so to prevent a greater harm (i.e. burning a cornfield as a firebreak to prevent a fire from crossing and reaching a town).
  4. Excuses
    • The actor realizes the action is wrong but there are other conditions that suggest they are not responsible.
  5. Nonexculpatory Public Policy Defense
    • Statute of limitations. The defendant may be culpable, but society wants to look forward, not backwards.
Additional Notes

Each category extra notes:

  1. Mistake of Fact. If the mistake in your head negates the element, then there is failure of proof.
  2. All elements have been satisfied + additional circumstantial events. See kidnap example from above.
  3. Justified because society wants it to happen given the circumstances.
  4. Insanity is an excuse. The elements are met but they are crazy.
  5. It can be used to meet a different policy goal. All crimes have a statute of limitations except murder.

The distinction between Justification and Excuse

Although they may sound similar there is one important difference between the two principles. A justification is something that is in reality a good (social benefit) because of the circumstances, even when it is normally considered a harm. Whereas, an excuse is inherently doing a bad thing, with no social benefit, but lack for moral blame for why they did that thing.

There are a couple of benefits to making justification arguments when possible:

  1. May help you win cases
  2. Sends a clear message that a justification is a good thing whereas an excuse is inherently wrong even if there is no blame.
  3. Puts the burden of proof on the prosecution for justification. However, for an excuse, the defendant has to show they meet those exceptions.
  4. Removes accomplice liability

Structure and Underlying Theories of Justification Defenses

Paul H. Robinson – Criminal Law Defenses

A justification defense has two elements. The action taken was necessary to protect the interest and the harm dealt was proportional to the harm received.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.