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
A defendant was tried in federal court for bank robbery under 18 U.S.C. § 2113. The jury was unable to reach a verdict, and the judge declared a mistrial over the defendant's objection. The prosecution then re-indicted 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. During a hearing on the motion, evidence showed that the trial judge had polled the jury and found them deadlocked 11-1 for conviction after three days of deliberation, and that the judge had given an Allen charge before declaring the mistrial. Which of the following best states the likely outcome?
- The motion should be granted because jeopardy attached when the jury was empaneled and sworn, and the defendant objected to the mistrial.
- The motion should be denied because a genuinely deadlocked jury constitutes manifest necessity for a mistrial, and retrial does not violate double jeopardy.
- The motion should be granted because the jury's 11-1 split shows the jury was close to acquitting one juror, and the prosecution should not receive a second opportunity to convict.
- The motion should be denied because double jeopardy does not attach in federal court until the verdict is rendered.
Show answer
Correct: The motion should be denied because a genuinely deadlocked jury constitutes manifest necessity for a mistrial, and retrial does not violate double jeopardy.
Under the 'manifest necessity' doctrine from United States v. Perez, 22 U.S. 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 deadlocked jury is the prototypical case of manifest necessity. Here, the judge took appropriate steps—polling the jury, allowing extended deliberation, and giving an Allen charge (Allen v. United States, 164 U.S. 492 (1896))—before concluding the jury was hopelessly deadlocked. A retrial following such a mistrial does not violate the Double Jeopardy Clause.
Derek, who was homeless, noticed that a house appeared unoccupied for weeks. At 2:00 a.m., he broke a window and entered the house intending only to sleep inside for the night. Once inside, he noticed a laptop on the kitchen table and decided to take it. He placed the laptop in his backpack and left the house through the back door. Under the common law, Derek is most likely guilty of:
- Burglary and larceny
- Larceny only
- Burglary only
- Neither burglary nor larceny, because the house was unoccupied
Show answer
Correct: Larceny only
Larceny at common law is the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive the owner of the property. Derek's taking of the laptop satisfies all elements: the taking was trespassory (without consent), he carried it away in his backpack, it was someone else's property, and his intent was to permanently deprive the owner. He is not guilty of burglary because, at common law, the intent to commit a felony must exist at the time of the breaking and entering. Since Derek only intended to sleep when he entered, the concurrent-intent requirement for burglary is not met.
Derek, an experienced hunter, was target shooting on his rural property when he noticed hikers on a public trail approximately 200 yards away. Despite recognizing that his bullets could travel that distance and strike the hikers, Derek concluded that his aim was good enough that the hikers were not in real danger. He continued shooting in their general direction, and a ricocheting bullet struck and killed one of the hikers. Under the Model Penal Code, what is the most serious degree of homicide for which Derek can properly be convicted?
- Purposeful murder, because Derek intentionally continued shooting after seeing the hikers.
- Murder based on knowledge, because Derek knew his bullets could reach the hikers.
- Manslaughter based on recklessness, because Derek consciously disregarded a substantial and unjustifiable risk that his conduct would cause death.
- Negligent homicide, because Derek's mistaken belief that the hikers were safe means he was not actually aware of the risk.
Show answer
Correct: Manslaughter based on recklessness, because Derek consciously disregarded a substantial and unjustifiable risk that his conduct would cause death.
Under MPC § 2.02(2)(c), recklessness requires that the actor consciously disregard a substantial and unjustifiable risk. Derek perceived the risk that his bullets could reach the hikers yet chose to continue shooting, dismissing the danger based on his own assessment of his skill. This conscious disregard of a known, substantial risk of death constitutes recklessness. Under MPC § 210.3(1)(a), manslaughter is a criminal homicide committed recklessly. Although recklessness accompanied by extreme indifference to human life could elevate the charge to murder under MPC § 210.2(1)(b), Derek's genuine (though unreasonable) belief that his skill eliminated the danger suggests recklessness without the extreme indifference required for murder.
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