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 licensed demolition contractor, was hired to demolish an abandoned warehouse. Before detonating the explosives, Derek noticed several cars parked near the building that had not been there during his earlier site inspection. Derek thought to himself, "Those cars probably belong to squatters inside the building, but I'm already behind schedule and the city will fine me if I don't finish today." Derek proceeded with the demolition, and two homeless individuals inside the warehouse were killed. Under the Model Penal Code, what is the most serious level of culpability a prosecutor could establish for Derek's conduct regarding the deaths?
- Purpose, because Derek made a deliberate choice to proceed with the demolition despite the risk to human life.
- Knowledge, because Derek was practically certain that people were inside the building when he detonated the explosives.
- Recklessness, because Derek was aware of a substantial and unjustifiable risk that people were inside the building and consciously disregarded that risk.
- Negligence, because Derek should have investigated whether anyone was inside before proceeding with the demolition.
Show answer
Correct: Recklessness, because Derek was aware of a substantial and unjustifiable risk that people were inside the building and consciously disregarded that risk.
Under MPC § 2.02(2)(c), a person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a material element of the offense exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe. Derek recognized that the parked cars likely meant people were inside (awareness of a substantial risk of death from detonation), but he consciously chose to proceed anyway for the sake of avoiding a fine—an unjustifiable reason to risk human lives. This constitutes a gross deviation from lawful conduct.
Derek was walking home at night when Marcus, a stranger, suddenly punched him in the face, knocking him to the ground. As Derek lay on the ground, Marcus stood over him and said, 'Stay down or I'll hit you again.' Derek, who had a legally carried folding knife in his pocket, pulled it out and stabbed Marcus once in the abdomen, killing him. At trial for murder, Derek raises self-defense. The jurisdiction follows the Model Penal Code. Which of the following is the strongest argument against Derek's self-defense claim?
- Derek had a duty to retreat before using any force because he was in a public place.
- Derek used deadly force in response to a threat that did not rise to the level of death, serious bodily harm, kidnapping, or sexual assault.
- Derek was the initial aggressor because he provoked Marcus by walking through Marcus's neighborhood at night.
- Self-defense is unavailable because Derek's belief that deadly force was necessary was per se unreasonable given that Marcus was unarmed.
Show answer
Correct: Derek used deadly force in response to a threat that did not rise to the level of death, serious bodily harm, kidnapping, or sexual assault.
Under MPC § 3.04(2)(b), deadly force is justifiable only when the actor believes it is necessary to protect against death, serious bodily harm, kidnapping, or forcible sexual intercourse. A single punch followed by a verbal threat to hit again, while constituting unlawful force, does not necessarily indicate a threat of death or serious bodily harm. The proportionality requirement means that Derek's use of a deadly weapon (knife) in response to what appears to be a threat of non-deadly battery is disproportionate. This is the strongest argument because the threat level — a single punch and a conditional threat of another punch — likely does not meet the threshold for justifying deadly force.
A defendant was tried in federal court for bank robbery under 18 U.S.C. § 2113. The jury deliberated for three days but could not reach a unanimous verdict, and the judge declared a mistrial over the defendant's objection. The prosecution then sought to retry the defendant on the same bank robbery charge. The defendant moved to dismiss, arguing that retrial would violate the Double Jeopardy Clause of the Fifth Amendment. How should the court rule on the defendant's motion?
- Grant the motion, because jeopardy attached when the jury was empaneled and sworn, and any subsequent retrial constitutes double jeopardy.
- Grant the motion, because the defendant objected to the mistrial, and retrial is barred whenever the defendant does not consent to termination of the first trial.
- Deny the motion, because a mistrial declared due to genuine jury deadlock satisfies the manifest necessity standard, permitting retrial without violating double jeopardy.
- Deny the motion, because double jeopardy protections do not apply until after a verdict has been rendered, and no verdict was reached here.
Show answer
Correct: Deny the motion, because a mistrial declared due to genuine jury deadlock satisfies the manifest necessity standard, permitting retrial without violating double jeopardy.
Under the 'manifest necessity' doctrine established in United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824), and reaffirmed in Arizona v. Washington, 434 U.S. 497 (1978), a trial judge's declaration of a mistrial due to a genuinely hung jury is the classic example of manifest necessity. The Supreme Court has held that retrial following such a mistrial does not violate the Fifth Amendment's Double Jeopardy Clause, even over the defendant's objection, because the defendant's interest in having the trial concluded by the particular tribunal is subordinate to the public interest in allowing the prosecution a full and fair opportunity to present its case to an impartial jury capable of reaching a verdict.
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