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 city enacts an ordinance making it a misdemeanor to 'loiter in any public place in a manner that annoys or disturbs nearby persons.' A street preacher is arrested under the ordinance after delivering loud religious sermons on a public sidewalk, causing several passersby to complain to police. The preacher challenges the ordinance on constitutional grounds. Which of the following is the preacher's strongest argument for invalidating the ordinance?
- The ordinance is unconstitutionally vague because the terms 'annoys or disturbs' fail to provide sufficient notice of what conduct is prohibited and invite arbitrary enforcement.
- The ordinance is unconstitutionally overbroad because it criminalizes all loitering regardless of the person's intent.
- The ordinance violates the preacher's right to free exercise of religion under the First Amendment as applied to his conduct.
- The ordinance violates substantive due process because there is no fundamental right to loiter and therefore the city has no legitimate interest in regulating such conduct.
Show answer
Correct: The ordinance is unconstitutionally vague because the terms 'annoys or disturbs' fail to provide sufficient notice of what conduct is prohibited and invite arbitrary enforcement.
This is the strongest argument. Under the void-for-vagueness doctrine rooted in the Due Process Clause of the Fourteenth Amendment, a criminal statute must (1) give a person of ordinary intelligence fair notice of what conduct is forbidden and (2) provide sufficiently definite standards for law enforcement to prevent arbitrary and discriminatory enforcement. See Kolender v. Lawson, 461 U.S. 352 (1983); Coates v. City of Cincinnati, 402 U.S. 611 (1971). In Coates, the Supreme Court struck down a nearly identical ordinance prohibiting conduct 'annoying to persons passing by,' holding that such language was unconstitutionally vague because 'annoying' is an inherently subjective standard that provides no ascertainable standard of conduct. The ordinance here suffers from the same defect: 'annoys or disturbs' is entirely dependent on the subjective reactions of bystanders and invites arbitrary enforcement by police.
Derek, a long-haul truck driver, had been driving for 18 consecutive hours in violation of federal hours-of-service regulations. While driving on a highway, Derek fell asleep at the wheel and his truck crossed the center line, striking and killing the driver of an oncoming vehicle. Derek had no prior history of falling asleep while driving and had never been diagnosed with any sleep disorder. At trial for involuntary manslaughter, Derek's attorney argues that the collision occurred during an unconscious state and therefore Derek did not commit a voluntary act. How should the court rule on this argument?
- The court should reject the argument because falling asleep after voluntarily driving for 18 consecutive hours constitutes a voluntary act sufficient to satisfy the actus reus requirement.
- The court should accept the argument because at the moment of the collision Derek was unconscious and therefore no voluntary act occurred.
- The court should accept the argument because Derek had no prior history of falling asleep while driving and therefore could not have foreseen the risk.
- The court should reject the argument because unconsciousness is not recognized as a defense under the Model Penal Code.
Show answer
Correct: The court should reject the argument because falling asleep after voluntarily driving for 18 consecutive hours constitutes a voluntary act sufficient to satisfy the actus reus requirement.
Under MPC § 2.01(1), criminal liability requires a voluntary act. However, the voluntariness inquiry is not limited to the precise moment of harm. Derek's voluntary act was continuing to drive while aware of increasing fatigue over 18 hours. The act of driving while fatigued—not the unconscious state at the moment of collision—supplies the actus reus. Courts consistently hold that where a defendant voluntarily creates the conditions leading to an unconscious harmful act, the voluntary act requirement is satisfied. See, e.g., People v. Decina, 2 N.Y.2d 133 (1956) (defendant who knew of seizure condition and chose to drive committed voluntary act by getting behind the wheel). Derek's deliberate choice to keep driving for 18 hours, in violation of safety regulations, is the relevant voluntary act.
David, who has no prior history of seizures or neurological conditions, was driving home from work when he experienced a sudden, unexpected grand mal seizure for the first time in his life. During the seizure, his body convulsed, causing his foot to press the accelerator and his car to veer into a crowded bus stop, killing two pedestrians. David is charged with two counts of involuntary manslaughter based on criminal negligence. David moves to dismiss the charges. How should the court rule on David's motion?
- Deny the motion, because David's act of driving was voluntary and therefore satisfies the actus reus requirement.
- Grant the motion, because the seizure was an involuntary act that negates the actus reus element of the offense.
- Deny the motion, because involuntary manslaughter is a strict liability offense that does not require a voluntary act.
- Grant the motion, but only if David can prove by clear and convincing evidence that the seizure was medically genuine.
Show answer
Correct: Grant the motion, because the seizure was an involuntary act that negates the actus reus element of the offense.
Under MPC § 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) explicitly provides that a reflex or convulsion is not a voluntary act. Because David had no prior history of seizures or any neurological condition, he had no reason to anticipate the seizure and therefore no basis upon which criminal negligence for driving could be established. The convulsive movements that caused the car to accelerate and veer were involuntary, and David could not have been on notice of the risk. This aligns with the reasoning in People v. Decina, 2 N.Y.2d 133 (1956), which distinguished between drivers who know of their condition and those who do not—only the former can be held criminally liable.
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