What to Expect
Criminal Law cold calls are uniquely challenging because the subject engages deep moral intuitions that professors will relentlessly probe. Expect to be asked not just what the law is, but whether it should be that way. 'Should we punish attempted murder as severely as completed murder? The defendant did everything in his power to kill—is it just moral luck that the victim survived?' These normative questions are not optional detours; they are central to the course.
The Model Penal Code versus common law distinction pervades Criminal Law cold calls. Your professor will frequently ask you to analyze a scenario under both frameworks and identify where they diverge. The MPC's four mental states (purposely, knowingly, recklessly, negligently) map imperfectly onto common law categories (specific intent, general intent, malice), and these translation problems are a favorite testing ground.
Homicide is the most heavily tested area. You must be able to distinguish first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter—and know how the MPC reclassifies these categories. The provocation/heat of passion doctrine and felony murder rule generate the most intense exchanges because they raise fundamental questions about proportionality and culpability.
Common Question Types
Mens Rea Classification
“A driver races through a residential neighborhood at 90 mph and kills a pedestrian. What is the defendant's mental state?”
Under the MPC framework, this is likely recklessness—the defendant consciously disregarded a substantial and unjustifiable risk of death. If the risk was extreme enough, a prosecutor might argue depraved heart murder (extreme recklessness manifesting extreme indifference to human life). Distinguish from negligence, which requires only that the defendant should have been aware of the risk, and from purpose or knowledge, which require intent to kill or virtual certainty of death.
Homicide Classification
“The defendant finds his spouse in bed with another person and immediately kills the other person. What offense is this?”
At common law, this is the classic voluntary manslaughter scenario—an intentional killing committed in the heat of passion upon adequate provocation, without sufficient time to cool. The elements are: (1) adequate provocation (traditionally, discovering adultery qualifies), (2) actual heat of passion, (3) no reasonable cooling time, and (4) a causal connection between the provocation and the killing. The effect is to reduce what would otherwise be murder to manslaughter. Under the MPC, this falls under extreme emotional disturbance, which is broader and more subjective.
Felony Murder Application
“During an armed robbery, the store clerk has a heart attack and dies from fright. Is this felony murder?”
Under the felony murder rule, a death that occurs during the commission of an inherently dangerous felony (robbery qualifies) is murder, regardless of the defendant's intent to kill. The death must be causally connected to the felony. Here, the heart attack was caused by the terror of the armed robbery, establishing causation. Discuss limitations: the merger doctrine, the agency theory vs. proximate cause theory for deaths caused by third parties, and whether the felony murder rule should even exist as a matter of policy.
Attempt Analysis
“The defendant buys a gun, drives to the victim's house, and sits in the car for an hour before driving away. Is this attempted murder?”
This turns on the actus reus requirement for attempt, which varies by test. Under the 'last act' test, no—the defendant did not fire. Under the 'dangerous proximity' test (common law), probably not—significant steps remained. Under the MPC's 'substantial step' test, it is closer: the defendant's conduct (acquiring a weapon, traveling to the scene) constitutes a substantial step strongly corroborative of criminal purpose. Also discuss abandonment as a potential defense, which the MPC recognizes but common law generally does not.
Self-Defense Limits
“The defendant was the initial aggressor in a bar fight. Can he claim self-defense if the other person pulls a knife?”
Generally, initial aggressors cannot claim self-defense. However, there are two exceptions: (1) if the initial aggressor withdrew from the confrontation and communicated that withdrawal, or (2) if the victim escalated to deadly force in response to non-deadly aggression, the initial aggressor may regain the right to use deadly force in self-defense. Analyze whether either exception applies, and note the MPC's similar but not identical approach.
Accomplice Liability
“A drives B to the bank knowing B intends to rob it. A waits in the car. Is A guilty of robbery?”
Under accomplice liability, A is guilty if he aided or encouraged the commission of the crime with the requisite mental state. The actus reus is satisfied—driving to the bank and waiting as a getaway driver constitutes aid. The mens rea requires purpose (or in some jurisdictions knowledge) that the crime be committed. If A knew B intended to rob the bank and intentionally facilitated the plan, A is liable as an accomplice for the robbery itself, not just as an accessory.
Insanity Defense
“Under the M'Naghten test, what must the defendant prove to establish insanity?”
Under M'Naghten, the defendant must prove that at the time of the act, they were laboring under such a defect of reason, from disease of the mind, that they did not know the nature and quality of the act, or if they did know it, they did not know that what they were doing was wrong. The test is purely cognitive—it does not account for defendants who know their conduct is wrong but cannot control their behavior. Contrast with the MPC test, which adds a volitional prong: the defendant lacked substantial capacity to conform their conduct to the requirements of the law.
Normative Challenge
“Should we punish people for crimes they only attempted? The victim is unharmed.”
Present both sides. The retributive argument: the defendant demonstrated the same moral culpability as a completed offense; the failure was due to luck, not lack of effort. The utilitarian argument: punishing attempts deters future criminal conduct and incapacitates dangerous individuals. The counterargument: punishing attempts equally to completed offenses ignores the importance of results in moral assessment, and may reduce the incentive for an attempter to desist before completion.
Preparation Strategy
Criminal Law preparation should focus on two parallel tracks: doctrinal precision and policy reasoning. For doctrine, create a chart mapping every offense and defense across both common law and the Model Penal Code. For each offense, list the actus reus, mens rea, attendant circumstances, and result elements. For each defense, list the elements and who bears the burden of proof. This chart becomes your master reference.
For policy, every major Criminal Law doctrine reflects a choice between competing theories of punishment—retribution, deterrence, incapacitation, and rehabilitation. Before class, identify which theory supports the rule in each assigned case and which theory would support a different rule. When the professor asks 'Should we punish this conduct?' you need to have arguments on both sides drawn from these frameworks.
Homicide requires extra preparation. Create a flowchart that begins with 'Did the defendant cause a death?' and branches through all possible classifications. Practice applying this flowchart to the facts of assigned cases. The distinctions between murder degrees and manslaughter categories are among the most heavily tested topics in all of law school.
Do's & Don'ts
Do's
- Always identify both the actus reus and mens rea before reaching a conclusion
- Distinguish between common law and MPC approaches when they differ
- Engage with policy questions directly—this is not a course where you can hide behind black-letter rules
- Know the four MPC mental states in order and be able to define each one precisely
- Discuss defenses affirmatively after establishing the prima facie case
- Use the language of the doctrine precisely—say 'purpose' not 'intent' when discussing MPC mental states
Don'ts
- Don't conflate motive with mens rea—a good motive does not negate a criminal mental state
- Don't forget that attempt requires specific intent even for crimes that are general intent
- Don't assume self-defense applies without checking whether the force was proportional
- Don't ignore the policy dimension of any question—Criminal Law professors expect it
- Don't confuse voluntary and involuntary manslaughter—they have completely different mental state requirements
Panic Protocol
When you get caught off guard, follow these steps to recover gracefully.
Start with the elements: 'This looks like a [specific crime] question. The elements are actus reus, mens rea, causation, and result. Let me take them in order.'
If a classification question stumps you, work by elimination: 'It's not first-degree murder because there is no premeditation. Is it second-degree murder or manslaughter? That depends on whether...'
Pivot to policy when the doctrine is unclear: 'The doctrinal answer is not straightforward, but the policy consideration here is...'
Compare frameworks: 'Under common law the answer is X, but the MPC would approach this differently by...'
If truly lost, identify the defendant's mental state: 'The key question is whether the defendant acted purposely, knowingly, recklessly, or negligently.'
Sample Exchange
A realistic professor-student dialogue to help you see how cold calls unfold in Criminal Law.
Professor
In People v. Decina, the defendant had an epileptic seizure while driving and killed four people. He was convicted. How can we punish someone for having a seizure?
Student
The conviction was not for the seizure itself—it was for the voluntary act of driving when the defendant knew he was prone to seizures. The actus reus requirement demands a voluntary act, and here the voluntary act was getting behind the wheel despite knowing about his condition. The seizure was involuntary, but the decision to drive was not.
Professor
What's the mens rea? He didn't intend to kill anyone.
Student
The mens rea is recklessness or criminal negligence. The defendant was aware of a substantial risk that he could lose control of the vehicle and consciously disregarded that risk by choosing to drive anyway. Under the MPC, this would be recklessness—a conscious disregard of a substantial and unjustifiable risk. The prosecution does not need to show intent to kill for an involuntary manslaughter or reckless homicide charge.
Professor
What if he had never had a seizure before and did not know about his condition?
Student
Then we lose both recklessness and negligence. If the defendant had no reason to know he was prone to seizures, there is no conscious disregard of a known risk and no failure to perceive a risk that a reasonable person would have noticed. The seizure while driving would be a truly involuntary act with no prior culpable conduct, and the actus reus requirement would not be satisfied. There would be no criminal liability.
Professor
So we just let someone go who killed four people?
Student
Yes, under traditional criminal law principles. Criminal liability requires both a voluntary act and a culpable mental state. Without those, punishment serves no retributive purpose—the defendant was not morally blameworthy—and no deterrent purpose—the defendant could not have modified behavior he did not know was dangerous. The harm is tragic, but the criminal law is not designed to address every tragedy. The victims' families might still have a civil tort remedy based on strict liability.
Professor
Good. Now, would your analysis change if the defendant felt slightly dizzy that morning and decided to drive anyway?
Student
Yes, significantly. Feeling dizzy adds a factual predicate for awareness of risk. If dizziness was a symptom he associated with his condition, we can argue conscious disregard of a known risk—recklessness. Even if he did not associate it with seizures specifically, a reasonable person who felt dizzy might refrain from driving, supporting at least a criminal negligence theory. The key question is what the defendant knew or should have known about the connection between the dizziness and the risk of losing consciousness.