Criminal Law on the NextGen Bar Exam
Criminal Law is really two subjects wearing a trench coat. Half is substantive doctrine — homicide, theft, inchoate offenses, defenses. The other half is constitutional criminal procedure — Fourth Amendment searches, Fifth Amendment Miranda, Sixth Amendment right to counsel. The exam tests both, and candidates who over-prepare for one side at the expense of the other consistently underperform.
Homicide is the single most tested area and it's worth memorizing the classification grid until it's reflexive. First-degree murder: premeditation and deliberation, or felony murder during an enumerated dangerous felony (BARRK — Burglary, Arson, Robbery, Rape, Kidnapping). Second-degree murder: intentional killing without premeditation, implied malice (extreme recklessness showing depraved indifference to human life), or unenumerated felony murder. Voluntary manslaughter: intentional killing in the heat of passion upon adequate provocation — the provocation must be the kind that would cause a reasonable person to lose self-control. Involuntary manslaughter: gross recklessness or criminal negligence. Every homicide question on the exam is ultimately asking you to classify the killing correctly. If you can do that reliably, you'll pick up points that other candidates lose.
The specific intent vs. general intent distinction matters primarily because of one defense: voluntary intoxication. It negates specific intent crimes (first-degree murder, larceny, burglary, attempt, conspiracy, solicitation) but not general intent crimes. The exam will present a defendant who was drunk and committed a crime, and the question is whether intoxication reduces or eliminates liability. Specific intent = yes (reduces). General intent = no (irrelevant).
Inchoate offenses have one critical rule that students confuse: conspiracy does NOT merge into the completed crime. You can be convicted of both conspiracy and the underlying offense. Attempt and solicitation DO merge — attempt merges into the completed crime, solicitation merges into conspiracy if the solicited party agrees.
On the procedure side, Fourth Amendment questions follow a two-step framework: (1) Was there a reasonable expectation of privacy? If yes, (2) did a warrant exception apply? The warrant exceptions — search incident to arrest, automobile, plain view, consent, exigent circumstances, stop and frisk — are tested more often than warrant requirements themselves. The exam loves to present a warrantless search and ask whether an exception saves it.
Miranda is the other procedural workhorse. Both custody AND interrogation must be present — if either is missing, Miranda doesn't apply. Custody means a reasonable person wouldn't feel free to leave. Interrogation means words or actions reasonably likely to elicit an incriminating response. The Berghuis v. Thompkins wrinkle: the suspect must unambiguously invoke their right to silence. Simply remaining silent for hours isn't an invocation.
Exam Tips
- Memorize the homicide grid cold: 1st degree (premeditation/felony murder) → 2nd degree (intent without premeditation/depraved heart) → voluntary manslaughter (heat of passion) → involuntary manslaughter (recklessness/negligence).
- Voluntary intoxication only negates SPECIFIC intent crimes. Know the list: first-degree murder, larceny, burglary, attempt, conspiracy, solicitation, robbery.
- Conspiracy does NOT merge — convicted of both conspiracy and the completed crime. Attempt and solicitation DO merge into the completed offense.
- Fourth Amendment: don't start with warrant requirements. Start with "was there a reasonable expectation of privacy?" If no, the search is valid regardless of warrant. If yes, check warrant exceptions.
- Miranda requires BOTH custody AND interrogation. Missing either one = no Miranda violation. The invocation must be unambiguous — silence alone isn't enough.
Key Rules to Know
- Felony murder: killing during BARRK felony (Burglary, Arson, Robbery, Rape, Kidnapping); merger doctrine bars it when the underlying felony IS the killing
- MPC mens rea hierarchy: purposely > knowingly > recklessly > negligently — each higher level satisfies any lower requirement
- Specific intent crimes list: first-degree murder, attempt, conspiracy, solicitation, larceny, burglary, robbery
- Miranda: custody + interrogation → warnings required; invocation must be unambiguous (Berghuis v. Thompkins)
- Strickland: deficient performance by counsel + prejudice (reasonable probability outcome would have differed)
Sample Practice Questions
Derek, a long-haul truck driver, was transporting legal cargo across a remote desert highway when he was flagged down by Marcus, who appeared to be a stranded motorist. Once Derek stopped, Marcus pulled a gun and ordered Derek to drive to a warehouse and help unload 500 pounds of marijuana that had been hidden in the truck's cargo hold without Derek's knowledge. Marcus told Derek, "If you don't help me unload this, I'll kill you right here." Derek complied and was arrested at the warehouse. At trial, Derek raises the defense of duress. The prosecution argues that Derek had a reasonable opportunity to escape when Marcus briefly fell asleep during the 45-minute drive to the warehouse. Which of the following statements best describes the likely outcome of Derek's duress defense?
- The duress defense will succeed because Derek was threatened with imminent death, which excuses any criminal conduct.
- The duress defense will likely fail because the prosecution can show Derek had a reasonable opportunity to escape the threatened harm during the 45-minute drive.
- The duress defense will fail because duress is never available as a defense to drug trafficking offenses under federal law.
- The duress defense will succeed because Derek should be evaluated under the standard of a person of reasonable firmness in his exact situation, and a reasonable person would have complied with an armed threat.
Show answer
Correct: The duress defense will likely fail because the prosecution can show Derek had a reasonable opportunity to escape the threatened harm during the 45-minute drive.
Under both the common law and the Model Penal Code § 2.09, a duress defense is unavailable when the defendant had a reasonable opportunity to escape the coercive situation. The fact that Marcus fell asleep during a 45-minute drive suggests Derek could have stopped the vehicle, fled, or sought help from law enforcement, thereby negating the imminence and inescapability requirements. Courts consistently hold that the availability of a reasonable alternative to committing the crime defeats the duress defense. See, e.g., United States v. Bailey, 444 U.S. 394 (1980) (requiring that defendant had no reasonable legal alternative).
Derek, who has no prior history of seizures, suddenly experiences a grand mal seizure while driving his car. During the seizure, his body convulses and his foot presses down on the accelerator, causing the car to strike and kill a pedestrian. Derek is charged with vehicular manslaughter. At trial, Derek moves to dismiss the charge. How should the court rule?
- The court should grant the motion because Derek's bodily movements during the seizure were involuntary and therefore do not satisfy the voluntary act requirement.
- The court should deny the motion because Derek's voluntary act of driving the car satisfies the actus reus requirement, regardless of what happened during the seizure.
- The court should deny the motion because the voluntary act requirement is satisfied as long as the defendant engaged in any voluntary conduct at any point during the chain of events leading to the harm.
- The court should deny the motion because criminal liability can be based on an omission, and Derek failed to stop his car before hitting the pedestrian.
Show answer
Correct: The court should grant the motion because Derek's bodily movements during the seizure were involuntary and therefore do not satisfy the voluntary act requirement.
Under the Model Penal Code § 2.01(1), a person is not guilty of an offense unless liability is based on conduct that includes a voluntary act. MPC § 2.01(2)(a) specifically lists reflexes and convulsions as examples of acts that are not voluntary. Because Derek had no prior history of seizures and thus no reason to anticipate one, his pressing of the accelerator during the seizure was an involuntary convulsion, not a voluntary act. Without a voluntary act, the actus reus element of the crime cannot be satisfied, and the charge must be dismissed. This aligns with the principle established in People v. Decina (1956), which distinguished between defendants who knew of their seizure condition (and thus voluntarily chose to drive) and those who had no such knowledge.
During an argument at a neighborhood block party, Victor shoved Derek hard in the chest, causing Derek to stumble backward. Victor then raised his fist and began advancing toward Derek, shouting that he was going to 'beat him senseless.' Derek, who was physically smaller than Victor, pulled a knife from his pocket and stabbed Victor in the abdomen, causing serious internal injuries. At trial for aggravated assault, Derek raises a claim of self-defense. The jurisdiction follows the Model Penal Code. Which of the following best states the likely outcome of Derek's self-defense claim?
- The self-defense claim will succeed because Derek reasonably believed Victor was about to inflict bodily harm upon him.
- The self-defense claim will fail because Derek used deadly force in response to a threat of non-deadly force, which was disproportionate under the circumstances.
- The self-defense claim will succeed because Derek's smaller physical size relative to Victor made the use of the knife a proportionate response.
- The self-defense claim will fail because Derek had a duty to retreat before using any force.
Show answer
Correct: The self-defense claim will fail because Derek used deadly force in response to a threat of non-deadly force, which was disproportionate under the circumstances.
Under MPC § 3.04(2)(b), deadly force is justifiable only when the actor believes it is immediately necessary to protect against death, serious bodily harm, kidnapping, or forcible sexual intercourse. Victor's conduct — a shove and a threat to beat Derek — constitutes a threat of non-deadly bodily harm, not a threat of death or serious bodily harm. Stabbing someone in the abdomen with a knife constitutes deadly force. Because Derek responded to a non-deadly threat with deadly force, his response was disproportionate and the self-defense claim will fail as a complete justification. Derek was entitled to use reasonable non-deadly force to defend himself but not to escalate to deadly force.
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