Most Tested MBE Criminal Law Topics | BarPrepPlay

Overview

Criminal Law rewards fast classification. Homicide, inchoate liability, accomplice exposure, and theft offenses drive a large share of the subject’s most expensive mistakes.

1. Homicide Distinctions

Very High frequency

FIRST DEGREE MURDER: Premeditated + deliberate killing, or felony murder (BARRK). SECOND DEGREE MURDER: Intent to kill without premeditation, intent to cause serious bodily harm, depraved heart (extreme recklessness). VOLUNTARY MANSLAUGHTER: Intentional killing in "heat of passion" after adequate provocation. Requires: (1) Adequate provocation (would cause reasonable person to lose control); (2) Actual provocation; (3) No cooling off; (4) No actual cooling. INVOLUNTARY MANSLAUGHTER: Criminal negligence (gross deviation) or misdemeanor-manslaughter. CAUSATION: But-for + proximate cause. Intervening acts may break chain.

HYPO: D finds spouse in bed with another person. D leaves, drives around for 2 hours, returns with gun, and shoots spouse. Charge? ANALYSIS: Heat of passion? Adequate provocation exists (adultery). BUT D left for 2 HOURS - this is cooling off time. A reasonable person would have cooled down. RESULT: MURDER (first degree if premeditation shown by getting gun; second degree if not). NOT voluntary manslaughter - too much time elapsed. The cooling period negates heat of passion.

• Exam shortcut: Premeditation; malice; heat of passion

Section sources

2. Conspiracy

Very High frequency

ELEMENTS: (1) Agreement between 2+ persons; (2) Intent to agree; (3) Intent to achieve unlawful objective; (4) Overt act (majority rule - any act, even preparatory). BILATERAL (CL) vs UNILATERAL (MPC): CL requires 2+ guilty minds. MPC allows conviction even if other party is feigning. PINKERTON LIABILITY: Each conspirator liable for crimes of co-conspirators committed in furtherance of conspiracy and foreseeable. WITHDRAWAL: Must communicate to all co-conspirators or inform police. Only cuts off future crimes - still liable for conspiracy itself. NO MERGER: Can be convicted of conspiracy AND completed crime.

HYPO: A and B agree to rob bank. A drives getaway car. B enters bank and, panicking, shoots guard. A claims he didn't know B had a gun. A liable for murder? ANALYSIS: Pinkerton liability - conspirators liable for foreseeable crimes in furtherance of conspiracy. Is shooting during bank robbery foreseeable? YES - violence during robbery is foreseeable even if not planned. RESULT: A is liable for felony murder even though he was outside. Pinkerton + felony murder = A guilty of murder.

• Exam shortcut: Agreement + overt act; Pinkerton liability

Section sources

3. Attempt

High frequency

ELEMENTS: (1) SPECIFIC INTENT to commit target crime (even if target crime is general intent); (2) SUBSTANTIAL STEP toward completion (beyond mere preparation). Tests: MPC substantial step (strongly corroborative of intent), dangerous proximity, unequivocality. IMPOSSIBILITY: Legal impossibility is defense (thought illegal but wasn't). Factual impossibility is NO defense (would be crime if facts as believed). ABANDONMENT: Voluntary and complete = defense (MPC); common law = no defense once attempt complete. MERGER: Attempt merges into completed crime.

HYPO: D shoots at V intending to kill, but gun is unloaded (unknown to D). D charged with attempted murder. Defense? ANALYSIS: FACTUAL impossibility - D intended to kill, took substantial step (pulling trigger), but facts made completion impossible (no bullets). Factual impossibility is NOT a defense - what matters is D's intent and belief. RESULT: GUILTY of attempted murder. It's irrelevant that the gun was unloaded. D believed it was loaded and intended to kill.

• Exam shortcut: Specific intent + substantial step

Section sources

4. Self-Defense

High frequency

NON-DEADLY FORCE: Reasonably necessary to protect against imminent unlawful force. DEADLY FORCE: Reasonable belief of imminent death or serious bodily harm. DUTY TO RETREAT (minority): Must retreat if safe before using deadly force, UNLESS in home (castle doctrine). No retreat required for non-deadly force. INITIAL AGGRESSOR: Cannot claim self-defense unless: (1) Withdrew and communicated withdrawal, or (2) Victim suddenly escalated to deadly force. IMPERFECT SELF-DEFENSE: Unreasonable but honest belief → reduces murder to manslaughter. FL: Stand Your Ground = no duty to retreat anywhere you have right to be.

HYPO: D starts bar fight by punching V. V pulls knife. D shoots and kills V. Self-defense? ANALYSIS: D was INITIAL AGGRESSOR (started fight). Initial aggressors lose self-defense UNLESS: (1) withdrew and communicated, or (2) victim escalated to deadly force. Here, V escalated (knife = deadly). D can claim self-defense against the knife attack. Under FL Stand Your Ground - no retreat duty. RESULT: D may have valid self-defense claim despite starting fight, because V escalated to deadly force. But factfinder decides if D's response was reasonable.

• Exam shortcut: Proportionality; duty to retreat (where applicable)

Section sources

5. Felony Murder

High frequency

Killing during commission of inherently dangerous felony = murder (transferred intent from felony). INHERENTLY DANGEROUS: BARRK = Burglary, Arson, Robbery, Rape, Kidnapping. LIMITATIONS: (1) Felony must be independent (merger doctrine - assault merges); (2) Death must be foreseeable; (3) During felony (including flight). WHO KILLED? AGENCY theory: Only co-felon killings count. PROXIMATE CAUSE theory: Any death proximately caused, even by victim or police. CO-FELON deaths: Usually no felony murder for death of co-felon. FL follows agency theory for felony murder.

HYPO: During robbery, store owner shoots and kills one robber (Robber 1). Can surviving Robber 2 be charged with felony murder of Robber 1? ANALYSIS: Who did the killing? Store owner (not a co-felon). Under AGENCY theory (FL): Only co-felon killings count. Store owner isn't a co-felon, so Robber 2 NOT guilty. Under PROXIMATE CAUSE theory: Any foreseeable death counts. Being shot during robbery is foreseeable, so Robber 2 guilty. RESULT: Depends on jurisdiction. FL (agency theory) = NOT guilty of felony murder for co-felon's death.

• Exam shortcut: BARRK felonies; agency vs proximate cause

Section sources

Primary law and source anchors

• Model Penal Code Sections 210.2 and 210.3 Modern homicide structure including murder, manslaughter, and extreme recklessness.
• Model Penal Code Section 2.06 Complicity rules on accomplice liability, solicitation, and withdrawal limits.
• Pinkerton v. United States, 328 U.S. 640 (1946) The classic co-conspirator-liability rule for foreseeable crimes in furtherance.

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