Criminal Law Exam Checklist

Go actor by actor, then act by act, then charge by charge. Most criminal law fact patterns give you three or four people and a sequence of events; the fastest way to lose points is to analyze the events chronologically rather than analyzing each defendant's potential liability separately. Write a heading for each defendant. Under each, list every crime the facts plausibly support, starting with the most serious.

Within each charge, the order is: (1) actus reus, (2) mens rea, (3) concurrence, (4) causation and result if the crime requires one, (5) attendant circumstances, (6) grading, (7) defenses. Defenses go last because a justification or excuse presupposes that the prosecution has made out a prima facie case. If you raise self-defense before establishing the elements of battery, you have skipped the step that carries most of the points.

Then run the second pass: inchoate liability and complicity. Even where the completed offense fails — the shot missed, the causal chain broke — attempt, conspiracy, and solicitation usually survive, and accomplice liability sweeps in the actors who never touched the victim.

Actus reus requires a voluntary act or a legally recognized omission. Reflexes, convulsions, and conduct during unconsciousness are not voluntary acts (see Martin v. State on involuntary presence, and People v. Decina on the epileptic driver who voluntarily got behind the wheel). For omissions, you need a duty: statute, contract, status relationship, voluntary assumption of care that seals off other help, or creation of the peril. Jones v. United States and People v. Beardsley are the standard illustrations.

Mens rea is where most of the analysis lives. Under the MPC, § 2.02 gives four culpability levels — purposely, knowingly, recklessly, negligently — and § 2.02(4) says a single stated mens rea applies to every material element unless the statute plainly says otherwise. Recklessness is the default when a statute is silent (§ 2.02(3)). Common law jurisdictions instead sort crimes into specific intent, general intent, malice, and strict liability, and that classification drives which defenses are available. Morissette v. United States and Staples v. United States are your authority for presuming a mens rea requirement into a silent federal statute.

Causation splits into actual cause (but-for, or the substantial-factor variant for concurrent sufficient causes) and proximate cause (foreseeability, intervening and superseding causes, the eggshell-victim rule). Concurrence requires that the mens rea actuate the act at the same moment — the defendant who forms intent to steal only after entering does not commit common law burglary.

Homicide is the single most tested area, and you should have the grading ladder memorized cold in both systems. At common law, start with malice aforethought and its four forms, then ask whether mitigation or a degree statute moves the crime up or down.

Under the MPC, the ladder is flatter and cleaner: § 210.2 murder (purposely or knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life, with felony murder appearing only as a rebuttable presumption of that indifference); § 210.3 manslaughter (recklessly, or a homicide that would be murder committed under extreme mental or emotional disturbance for which there is reasonable explanation or excuse); § 210.4 negligent homicide.

The provocation and EMED comparison is a reliable essay generator. At common law, adequate provocation is a categorical inquiry with no cooling-off period, and words alone are traditionally insufficient (Girouard v. State), though Maher v. People pushed toward a jury standard. The MPC's EMED test is broader, subjectivized to the defendant's situation, and has no cooling-off bar — People v. Casassa is the leading application.

Attempt requires specific intent to commit the target offense — even for crimes like depraved-heart murder that need no intent — plus conduct beyond mere preparation. Jurisdictions split on the conduct test: dangerous proximity to success (People v. Rizzo), the last-act or physical-proximity approaches, or the MPC § 5.01 substantial step strongly corroborative of criminal purpose, which reaches earlier conduct. Address impossibility: factual impossibility is no defense, true legal impossibility is, and the MPC largely abolishes the distinction by judging the actor on the facts as she believed them. Abandonment is not a common law defense but is available under MPC § 5.01(4) if complete and voluntary.

Conspiracy requires an agreement plus intent to agree and intent to achieve the object; many jurisdictions and the federal system add an overt act. Note the bilateral common law rule versus the MPC's unilateral approach, which permits conviction where the only other party is a feigning police agent. Then flag the consequences: Pinkerton v. United States makes each conspirator liable for foreseeable substantive crimes committed in furtherance of the conspiracy, a doctrine the MPC rejects. Check Wharton's rule and whether the conspiracy merges into the completed offense (it does not, at common law or federally).

Accomplice liability needs assistance or encouragement, however slight, plus the intent that the principal commit the offense. Mere presence is not enough. Discuss whether your jurisdiction follows the natural and probable consequences doctrine, which extends the accomplice's liability to foreseeable further crimes; the MPC does not. Distinguish the accessory after the fact, a separate and lesser offense.

Run failure-of-proof defenses first, because they are not really defenses: mistake of fact negates mens rea (a mistake need only be honest for specific intent crimes, honest and reasonable for general intent), and voluntary intoxication traditionally negates specific intent only. Montana v. Egelhoff upheld a state's power to bar intoxication evidence entirely. Mistake of law is generally no defense, with narrow exceptions for reliance on an official interpretation, statutes defining the offense by reference to another legal rule, and the notice problem in Lambert v. California; Cheek v. United States shows how a 'willfulness' element can make good-faith misunderstanding relevant.

Then justifications, which say the conduct was right: self-defense (honest and reasonable belief in imminent unlawful force, proportionality, initial-aggressor and retreat limits, castle doctrine), defense of others, defense of property, necessity, and law enforcement authority. People v. Goetz holds the reasonableness inquiry objective but informed by the defendant's circumstances; State v. Kelly addresses battered-woman-syndrome evidence. Regina v. Dudley and Stephens establishes that necessity is not a defense to intentional homicide.

Then excuses, which say the actor is not blameworthy: duress (threat of death or serious bodily injury, imminent, no reasonable escape, and traditionally unavailable for murder; MPC § 2.09 uses a person-of-reasonable-firmness standard and has no imminence requirement), insanity, infancy, and involuntary intoxication. Know the four insanity tests — M'Naghten's right/wrong cognitive test, irresistible impulse, the MPC § 4.01 substantial capacity test, and the largely abandoned Durham product test. Kahler v. Kansas (2020) held that due process does not require any particular formulation. Finally, note burden allocation: In re Winship puts every element on the prosecution beyond a reasonable doubt, but Patterson v. New York permits states to place affirmative defenses on the defendant.

Ask your professor which body of law governs before the exam, and take the answer literally. Some courses are pure MPC, some are common law with MPC comparison, some use a specific state's penal code, and some hand you a statute on the exam and expect you to apply only that text. This is the single largest source of variation in what a correct answer looks like.

If the course covers both, the highest-scoring structure is to resolve the issue under the governing framework, then add one or two sentences on how the other system would differ and why the difference matters on these facts. Do this only where the systems actually diverge — mens rea allocation, felony murder, provocation versus EMED, attempt's conduct test, conspiracy's bilateral requirement, duress and murder, insanity. Do not append an MPC paragraph to every issue; that reads as canned.

Cite the MPC by section in text — Model Penal Code § 2.02(2)(c) for recklessness, § 5.01(1)(c) for the substantial step. Full Bluebook form is Model Penal Code § 2.02 (Am. Law Inst. 1985), but on a closed-universe exam the section number alone is enough. Case names are worth using as shorthand for a rule ('under Rizzo's dangerous-proximity test'), never as a substitute for stating the rule.

Allocate time by point value and stop when the clock says stop. Spend the first five to eight minutes of a one-hour essay reading, marking each actor, and outlining charges in the margin. A fact pattern with four defendants and forty minutes gives you roughly ten minutes each — you cannot write everything, so triage toward the charges with genuine element disputes.

Argue both sides of every close element. Criminal law essays are built so that reasonable minds differ on whether the substantial step was taken, whether the provocation was adequate, whether the intervening act superseded. Full credit usually requires stating the rule, marshalling the specific facts for the prosecution, marshalling the facts for the defense, and then concluding. A conclusion without the competing argument earns a fraction of the points.

Use the facts, all of them. Every detail — the hour, the weapon, the words spoken, the number of drinks, the two-week gap — was placed there to trigger an element or a defense. If you finish an essay with unused facts, you missed an issue. Conversely, resist writing rule statements no fact calls for; unrequested doctrine is usually neutral at best and signals poor judgment at worst.