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
Marcus was walking home late at night when Victor, a stranger, aggressively confronted him on the sidewalk and demanded his wallet. When Marcus refused, Victor punched Marcus in the face, knocking him backward. As Victor moved toward Marcus again with his fists raised, Marcus pulled a knife from his pocket and fatally stabbed Victor in the chest. At trial for murder, Marcus raises self-defense. The jurisdiction follows the Model Penal Code. Which of the following is most accurate regarding Marcus's self-defense claim?
- Marcus's self-defense claim will succeed because Victor was the initial aggressor and Marcus had no duty to retreat.
- Marcus's self-defense claim will fail because deadly force can never be used in response to an unarmed attack.
- Marcus's self-defense claim will likely fail because the use of deadly force was disproportionate to the non-deadly threat he faced, unless he reasonably believed Victor's continued attack threatened death or serious bodily harm.
- Marcus's self-defense claim will succeed because any person subjected to an unprovoked physical attack is justified in using whatever force is necessary to end the threat.
Show answer
Correct: Marcus's self-defense claim will likely fail because the use of deadly force was disproportionate to the non-deadly threat he faced, unless he reasonably believed Victor's continued attack threatened death or serious bodily harm.
Under MPC § 3.04(2)(b), the use of deadly force in self-defense is justifiable only when the actor believes such force is necessary to protect himself against death, serious bodily harm, kidnapping, or forcible sexual intercourse. A single punch and raised fists from an unarmed attacker generally constitute non-deadly force, and responding with a fatal stabbing would be considered disproportionate unless Marcus reasonably believed the continued attack threatened death or serious bodily harm. The proportionality requirement is central to the MPC's framework for deadly force. Marcus bears the burden of showing that his belief in the need for deadly force was reasonable under the circumstances.
David, who has no history of sleepwalking or any known sleep disorder, falls asleep on a park bench one afternoon. While in a deep sleep, he begins flailing his arms violently and strikes a jogger passing by, breaking the jogger's nose. David has no memory of the incident and was completely unconscious when it occurred. A neurologist later confirms that David's movements were involuntary reflexive actions during a non-REM sleep stage. David is charged with battery. Which of the following provides David's strongest defense?
- David lacked the requisite mens rea for battery because he did not intend to strike the jogger.
- David's conduct did not include a voluntary act as required for criminal liability because his movements while unconscious were not the product of his conscious will.
- David cannot be convicted because his decision to fall asleep on the park bench was not inherently reckless or negligent conduct.
- David has a valid insanity defense because his unconscious state rendered him unable to appreciate the nature and quality of his actions.
Show answer
Correct: David's conduct did not include a voluntary act as required for criminal liability because his movements while unconscious were not the product of his conscious will.
Under MPC § 2.01(1), a person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable. MPC § 2.01(2)(b) specifically lists an act performed while unconscious or asleep as an example of a movement that is not a voluntary act. Because David was in a deep sleep and his movements were involuntary reflexive actions not the product of his effort or determination, there is no voluntary act to satisfy the actus reus requirement, providing a complete defense to criminal liability.
Davis and Monroe agreed to commit a series of armed robberies of convenience stores. They planned the robberies together, selected targets, and purchased ski masks. During their third robbery, while Davis waited in the getaway car, Monroe pistol-whipped the store clerk, causing severe brain damage. Monroe had never been violent during the prior robberies, and Davis had no knowledge that Monroe would assault anyone. Davis was charged with assault causing serious bodily injury under a Pinkerton liability theory. Which of the following is Davis's strongest argument against Pinkerton liability for the aggravated assault?
- Davis did not personally commit the assault and was sitting in the car at the time.
- The assault was not within the reasonably foreseeable scope of the conspiracy to commit armed robbery.
- Davis withdrew from the conspiracy before the assault occurred by remaining in the car rather than entering the store.
- Davis and Monroe never expressly agreed that violence would be used against store employees.
Show answer
Correct: Davis and Monroe never expressly agreed that violence would be used against store employees.
While this is Davis's strongest available argument, it is still unlikely to succeed. Under Pinkerton v. United States, 328 U.S. 640 (1946), liability extends to reasonably foreseeable crimes committed in furtherance of the conspiracy, regardless of whether they were expressly agreed upon. However, arguing the absence of an agreement to commit violence is Davis's best available defense because it at least challenges the scope of the conspiratorial agreement and forces the prosecution to rely on the foreseeability extension rather than the core agreement. Some courts have limited Pinkerton liability where the substantive offense diverges significantly from the agreed-upon criminal objectives. Nevertheless, because this conspiracy involved armed robbery—inherently involving weapons and the threat of violence—most jurisdictions would still find the assault foreseeable and in furtherance of the conspiracy.
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