Criminal Law & Procedure MBE Prep
Criminal Law and Procedure on the MBE is split roughly evenly between substantive criminal law and criminal procedure. Substantive criminal law focuses on the elements of crimes (actus reus, mens rea), inchoate offenses (attempt, conspiracy, solicitation), defenses (self-defense, insanity, intoxication, duress), and homicide distinctions. Criminal procedure focuses on Fourth Amendment search and seizure, Fifth Amendment rights (Miranda, double jeopardy, self-incrimination), Sixth Amendment rights (right to counsel, right to jury trial, confrontation clause), and Eighth Amendment protections.
For substantive criminal law, the MBE primarily tests common law definitions unless the question specifies the Model Penal Code. Know both frameworks, but default to common law. Homicide questions are particularly important: you must distinguish between first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter.
For criminal procedure, Fourth Amendment questions dominate. You must know when a search or seizure occurs, the warrant requirement and its exceptions, the exclusionary rule and its exceptions, and the standards for stop-and-frisk under Terry v. Ohio.
High-Yield Topics
| Topic | Frequency | Tips |
|---|---|---|
| Fourth Amendment: Search and Seizure | Very High | A search occurs when the government violates a reasonable expectation of privacy (Katz test). Warrant exceptions: search incident to lawful arrest, automobile exception, plain view, consent, exigent circumstances, inventory searches, and Terry stop-and-frisk. The exclusionary rule bars illegally obtained evidence, but know the exceptions: good faith, independent source, inevitable discovery, and attenuation. |
| Homicide Distinctions | Very High | First-degree murder: premeditated and deliberate killing. Second-degree murder: intentional killing without premeditation, or extreme recklessness (depraved heart). Voluntary manslaughter: intentional killing in the heat of passion after adequate provocation. Involuntary manslaughter: unintentional killing through criminal negligence or during an unlawful act. The felony murder rule applies to killings during the commission of inherently dangerous felonies (BARRK). |
| Fifth Amendment: Miranda and Self-Incrimination | High | Miranda warnings are required when there is custodial interrogation. Custody = a reasonable person would not feel free to leave. Interrogation = direct questioning or its functional equivalent (words or actions likely to elicit an incriminating response). The right to silence must be invoked unambiguously (Berghuis v. Thompkins). A waiver must be knowing, voluntary, and intelligent. |
| Inchoate Offenses: Attempt, Conspiracy, Solicitation | High | Attempt: specific intent + substantial step beyond mere preparation. Conspiracy: agreement between two or more persons + intent to achieve an unlawful objective + (in most jurisdictions) an overt act. Under common law, the Wharton Rule prevents conspiracy charges when the crime requires two participants. Solicitation merges with the completed crime; conspiracy does not. |
| Sixth Amendment: Right to Counsel | High | The Sixth Amendment right to counsel attaches at the initiation of formal adversarial proceedings (arraignment, indictment). It is offense-specific: it only applies to the charged offense. Massiah doctrine: once the right attaches, the government cannot deliberately elicit statements about the charged offense. Distinguish from the Fifth Amendment Miranda right to counsel, which applies during custodial interrogation regardless of charges. |
| Defenses: Self-Defense, Insanity, Intoxication | High | Self-defense: reasonable belief of imminent threat of unlawful force; proportional response required. Deadly force only to prevent death or serious bodily harm. The initial aggressor generally cannot claim self-defense unless they withdraw. Insanity: know M'Naghten (did not know nature/quality of act or that it was wrong) and MPC (lacked substantial capacity to appreciate criminality or conform conduct). Voluntary intoxication negates specific intent but not general intent. |
| Fourth Amendment: Automobile Exception | Moderate-High | Police may search a vehicle without a warrant if they have probable cause to believe it contains contraband or evidence of a crime. The search may extend to any part of the vehicle and any container within it where the evidence might be found. This exception applies even after the vehicle has been impounded. It is based on the reduced expectation of privacy in vehicles and their mobility. |
| Accomplice Liability | Moderate | An accomplice is liable for the crime they assisted or encouraged AND any other crimes committed by the principal that were foreseeable consequences of the criminal plan. The accomplice must have the intent to assist the principal in committing the crime. Mere presence at the scene is insufficient. Withdrawal requires notifying the principal and, in some jurisdictions, taking affirmative steps to prevent the crime. |
| Double Jeopardy | Moderate | Jeopardy attaches in a jury trial when the jury is sworn and in a bench trial when the first witness is sworn. The Blockburger test determines whether two offenses are the same: they are different offenses if each requires proof of an element that the other does not. Separate sovereigns (federal and state, or two states) may prosecute for the same conduct without violating double jeopardy. |
| Consent Searches and Terry Stops | Moderate | Consent must be voluntary (totality of circumstances) and need not be informed. A third party can consent if they have common authority over the premises. A Terry stop requires reasonable suspicion of criminal activity. A pat-down (frisk) requires reasonable suspicion that the suspect is armed and dangerous. During a frisk, officers may only seize items whose criminal nature is immediately apparent (plain feel). |
Common MBE Traps
Confusing specific intent and general intent crimes
Specific intent crimes require intent to achieve a particular result (e.g., larceny requires intent to permanently deprive). General intent crimes only require intent to perform the prohibited act. Voluntary intoxication is a defense to specific intent crimes but NOT to general intent crimes. The MBE often presents an intoxicated defendant and asks about liability for different crimes.
Applying Miranda to non-custodial encounters
Miranda only applies to custodial interrogation. A voluntary interview at the police station (where the suspect is free to leave), a traffic stop, or a Terry stop is generally not custody for Miranda purposes. If a question describes an encounter where the suspect is free to leave, Miranda warnings are not required.
Forgetting that conspiracy does not merge with the completed crime
Unlike attempt and solicitation, conspiracy is a separate offense that does not merge with the target crime. A defendant can be convicted of both conspiracy and the completed crime. This is frequently tested because students assume all inchoate offenses merge.
Treating felony murder as available for any felony
The felony murder rule applies only to deaths during inherently dangerous felonies (BARRK: Burglary, Arson, Robbery, Rape, Kidnapping). Not all felonies qualify. Also, the killing must occur during the commission of or flight from the felony. If the felony is complete and the defendant has reached a place of temporary safety, the felony murder rule no longer applies.
Applying the exclusionary rule too broadly
The exclusionary rule has important exceptions: good faith reliance on a warrant later found invalid (Leon), independent source doctrine, inevitable discovery, and attenuation of the taint. Also, illegally obtained evidence may be used for impeachment purposes if the defendant testifies. The MBE frequently tests these exceptions.
Confusing the Sixth Amendment right to counsel with the Fifth Amendment right
The Sixth Amendment right to counsel is offense-specific and attaches at formal proceedings. The Fifth Amendment Miranda right to counsel applies during any custodial interrogation. They have different triggering events, different scopes, and different waiver rules. Questions that describe post-indictment interrogation are testing the Sixth Amendment, not Miranda.
Assuming retreat is always required before using deadly force
At common law, there is a duty to retreat before using deadly force only if retreat can be done safely. But the castle doctrine eliminates the duty to retreat in one's own home. Stand-your-ground jurisdictions eliminate the duty entirely. The MBE will specify whether the jurisdiction requires retreat; do not assume one way or the other.
Study Strategy
Divide your study time between substantive criminal law and criminal procedure. For substantive criminal law, master the homicide distinctions first because they appear on almost every MBE. Create a chart showing first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter with the mens rea, act, and key distinguishing factors for each.
For criminal procedure, the Fourth Amendment is the highest-yield topic. Build a decision tree: Was there a search or seizure? Did the police have a warrant? If not, does an exception apply? If evidence was obtained illegally, does an exception to the exclusionary rule apply? This systematic approach prevents you from jumping to conclusions.
Study the defenses as a group. Make a chart showing which defenses apply to specific intent vs. general intent vs. strict liability crimes. Understand how voluntary intoxication, involuntary intoxication, insanity, mistake of fact, and mistake of law operate differently depending on the type of crime.
Mnemonics & Memory Aids
Felony Murder Predicate Felonies
BARRK: Burglary, Arson, Robbery, Rape, Kidnapping.
Fourth Amendment Warrant Exceptions
ESCAPIST: Exigent circumstances, Search incident to arrest, Consent, Automobile exception, Plain view, Inventory search, Stop and frisk (Terry), Special needs.
MPC Mens Rea Levels
PINK: Purposely, knowingly (Intentionally implied), Negligently, Knowingly (recklessly between)... Actually: P-K-R-N: Purpose, Knowledge, Recklessness, Negligence (from most to least culpable).
Miranda Requirements
CUSTARD: CUStodial interrogation Triggers A Right to be informed of your rights and to have an attorney During questioning.
Exclusionary Rule Exceptions
GAIA: Good faith (Leon), Attenuation, Independent source, (inevitable) Arrival of discovery.
Time Management Tips
- Criminal Law questions tend to be more straightforward than Criminal Procedure questions. If you are running behind on time, prioritize finishing Criminal Law questions quickly to bank time for the more complex procedure analysis.
- For Fourth Amendment questions, identify the threshold issue first: was there a search or seizure? If no, the Fourth Amendment is not implicated, and the evidence is admissible.
- Homicide questions require careful reading. Look for facts indicating premeditation (planning, motive, manner of killing) vs. heat of passion (provocation, insufficient cooling time). The answer often turns on a single factual detail.
- When a question tests Miranda, check custody first, then interrogation. If either element is missing, Miranda does not apply, and you can eliminate answer choices that assume it does.
Related Legal Rules
Mens rea refers to the guilty mind or mental state required for criminal liability. The Model Penal Code identifies four levels: purposely, knowingly, recklessly, and negligently, each representing a decreasing degree of culpability.
Actus reus is the physical or voluntary act requirement for criminal liability. A defendant must commit a voluntary bodily movement, and mere thoughts, status conditions, or involuntary acts cannot form the basis of criminal punishment.
The felony murder rule holds a defendant liable for murder when a death occurs during the commission of a dangerous felony, regardless of intent to kill. It eliminates the need to prove the mens rea typically required for murder.
The merger doctrine prevents lesser included offenses from serving as the predicate felony for felony murder. It ensures that crimes like assault, which are inherent in every homicide, do not automatically elevate a killing to felony murder.
Conspiracy is an agreement between two or more persons to commit an unlawful act, combined with the intent to achieve the criminal objective. Most modern jurisdictions also require an overt act in furtherance of the agreement.
Criminal attempt requires the specific intent to commit a crime and a substantial step toward its commission that goes beyond mere preparation. It is an inchoate offense that allows punishment before the target crime is completed.
Solicitation is the crime of asking, encouraging, or requesting another person to commit a crime, with the intent that the crime be committed. The offense is complete upon the asking, regardless of whether the other person agrees.
Accomplice liability holds a person criminally responsible for another's crime when they intentionally aid, abet, encourage, or assist in its commission. The accomplice is liable for the same crime as the principal.
Self-defense justifies the use of force when a person reasonably believes it is necessary to protect themselves from an imminent unlawful attack. Deadly force is permitted only when the person faces a threat of death or serious bodily harm.
Defense of others allows a person to use reasonable force to protect a third party from imminent unlawful harm. The defender may use the same level of force the third party would be entitled to use in self-defense.
The castle doctrine eliminates the duty to retreat when a person is attacked in their own home. A homeowner may use deadly force against an intruder without first attempting to retreat, treating the home as the ultimate sanctuary.
Stand your ground laws eliminate the duty to retreat before using deadly force in self-defense in any location where the defendant is lawfully present. Unlike the castle doctrine, they are not limited to the home.
The M'Naghten test for insanity requires the defendant to prove that, at the time of the act, a mental disease or defect caused them to either not know the nature of their act or not know that it was wrong.
The MPC insanity test provides that a defendant is not responsible if, due to mental disease or defect, they lacked substantial capacity to appreciate the criminality of their conduct or to conform their conduct to the law.
Entrapment is a defense asserting that the government induced the defendant to commit a crime they were not predisposed to commit. The subjective test focuses on the defendant's predisposition, while the objective test focuses on government conduct.
The necessity defense (choice of evils) justifies criminal conduct when the defendant reasonably believed their actions were necessary to avoid a greater harm than the harm caused by the criminal act.
Duress is a defense where the defendant committed a crime because of a threat of imminent death or serious bodily harm from another person. The defendant must have had no reasonable opportunity to escape the threat.
Voluntary intoxication may negate specific intent but is no defense to general intent crimes. Involuntary intoxication is treated like insanity and can serve as a complete defense if it renders the defendant unable to understand the nature of their act.
Murder is divided into degrees based on the defendant's mental state. First-degree murder requires premeditation and deliberation, while second-degree murder encompasses intentional killings without premeditation and killings committed with extreme recklessness or depraved heart.
Voluntary manslaughter is an intentional killing committed in the heat of passion after adequate provocation. It is not a defense but a partial mitigation that reduces what would otherwise be murder to a lesser homicide offense.
Involuntary manslaughter is an unintentional killing caused by criminal negligence or during the commission of an unlawful act not amounting to a felony. It represents the least culpable form of criminal homicide.
Larceny is the trespassory taking and carrying away of another's property with intent to permanently deprive. Robbery adds force or threat of force. Burglary is the unlawful entry into a structure with intent to commit a crime inside.
The Double Jeopardy Clause of the Fifth Amendment prohibits a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense in a single proceeding.