Multistate Bar Examination (MBE) Criminal Law and Procedure Syllabus

Criminal Law and Procedure syllabus — full chapter and topic list

Expand any chapter to see its topics and sub-topics. This is the whole examinable outline for Criminal Law and Procedure in Multistate Bar Examination (MBE), not a summary of it.

1. 1

   Elements and Principles of Criminal Liability

   3 topics

   • Actus Reus and Mens Rea
     • Voluntary acts and omissions
     • Common law mental states: specific intent, malice, general intent
     • Model Penal Code culpability levels
     • Strict liability offenses
   • Causation
     • Actual (but-for) causation
     • Proximate (legal) causation and intervening causes
   • Concurrence and Vicarious Liability
     • Concurrence of act and intent
     • Accomplice and vicarious liability principles
2. 2

   Inchoate Crimes and Parties

   3 topics

   • Attempt
     • Substantial step and proximity tests
     • Impossibility and abandonment defenses
   • Solicitation and Conspiracy
     • Agreement and overt act requirements
     • Pinkerton liability for co-conspirators
     • Wharton's rule and withdrawal
   • Parties to Crime
     • Principals and accomplices
     • Accessory after the fact
3. 3

   Specific Offenses

   3 topics

   • Homicide
     • Common law murder and malice aforethought
     • First-degree, second-degree, and felony murder
     • Voluntary and involuntary manslaughter
   • Crimes Against the Person
     • Assault and battery
     • Kidnapping and false imprisonment
     • Rape and sexual offenses
   • Property Crimes
     • Larceny, embezzlement, and false pretenses
     • Robbery and extortion
     • Burglary and arson
     • Receiving stolen property and forgery
4. 4

   Defenses to Criminal Liability

   3 topics

   • Justification Defenses
     • Self-defense and defense of others
     • Defense of property
     • Necessity
   • Excuse Defenses
     • Insanity tests: M'Naghten, irresistible impulse, MPC, Durham
     • Intoxication: voluntary and involuntary
     • Duress and infancy
   • Other Defenses
     • Mistake of fact and mistake of law
     • Entrapment
5. 5

   Constitutional Criminal Procedure: Searches and Seizures

   3 topics

   • Fourth Amendment Threshold
     • Government action and reasonable expectation of privacy
     • Standing to challenge a search
   • Warrant Requirement and Exceptions
     • Probable cause and warrant particularity
     • Search incident to arrest
     • Automobile exception
     • Plain view, consent, and exigent circumstances
     • Stop and frisk (Terry stops)
   • Arrests and Seizures of Persons
     • Probable cause for arrest
     • Use of force and detention scope
6. 6

   Confessions, Identifications, and Trial Rights

   4 topics

   • Confessions and Interrogation
     • Miranda warnings and custodial interrogation
     • Waiver and invocation of rights
     • Voluntariness under due process
     • Sixth Amendment right to counsel at interrogation
   • Identification Procedures
     • Lineups, showups, and photo arrays
     • Right to counsel and due process challenges
   • Exclusionary Rule and Fruits
     • Fruit of the poisonous tree
     • Exceptions: independent source, inevitable discovery, attenuation, good faith
   • Trial and Post-Trial Rights
     • Right to counsel at trial and effective assistance
     • Right to jury trial and confrontation
     • Double jeopardy
     • Burden of proof and guilty pleas

Criminal Law and Procedure flashcards for Multistate Bar Examination (MBE)

19 of 59 cards from the Criminal Law and Procedure deck — real questions with worked answers.

1. What are the two basic components every crime requires (the 'elements' framework)?

   An actus reus (a voluntary physical act or qualifying omission) and a mens rea (the required guilty state of mind), which must concur, plus causation and any required result/attendant circumstances.

2. What makes an act 'voluntary' for actus reus purposes, and name acts that are NOT voluntary.

   A voluntary act is a willed bodily movement. NOT voluntary: reflexes/convulsions, movements while unconscious or asleep, conduct under hypnosis, and acts that are not the product of the actor's own volition.

3. When does a failure to act (omission) create criminal liability?

   Only when there is a legal duty to act (by statute, contract, status relationship, voluntary assumption of care that secludes the victim, or creation of the peril), the defendant has knowledge of the facts giving rise to the duty, and it is reasonably possible to perform.

4. List the four common-law mens rea levels in the traditional hierarchy.

   Specific intent, malice, general intent, and strict liability (no intent). (Distinct from the MPC's purposely/knowingly/recklessly/negligently scheme.)

5. Define the four MPC (Model Penal Code) culpability states.

   Purposely (conscious objective to engage in conduct/cause result); Knowingly (aware conduct is of that nature or practically certain to cause result); Recklessly (conscious disregard of a substantial and unjustifiable risk); Negligently (should be aware of a substantial and unjustifiable risk).

6. Why does the specific- vs. general-intent distinction matter for defenses?

   Voluntary intoxication and unreasonable mistake of fact can negate the heightened intent of a specific-intent crime, but generally are NOT defenses to general-intent or malice crimes.

7. Name the major specific-intent crimes tested on the MBE.

   Solicitation, conspiracy, attempt, first-degree premeditated murder, assault (attempted battery), larceny, robbery, burglary, forgery, false pretenses, and embezzlement. (Mnemonic: 'FIAT' / First-degree + Inchoate + Assault + Theft offenses.)

8. What is 'transferred intent' and which crimes does it apply to?

   If a defendant intends harm to one victim but harms another, the intent transfers to the actual victim. It applies to homicide, battery, and arson (result crimes), but NOT to attempt.

9. What are the three types of causation issues, and what two causal showings does the prosecution need?

   The prosecution must show both actual (but-for/cause-in-fact) causation AND proximate (legal) causation that the result was a foreseeable consequence of the defendant's conduct.

10. How do intervening causes affect proximate cause?

    A dependent (foreseeable/responsive) intervening cause does NOT break the causal chain (e.g., negligent medical care, victim's escape attempt). An independent (unforeseeable/coincidental) superseding cause does break the chain and cuts off liability.

11. State the concurrence requirement.

    The defendant must have the required mens rea at the moment of (concurrent with) the act that causes the criminal result; the intent must actuate the conduct, not arise afterward.

12. When is an employer/principal vicariously liable for crimes of an employee/agent?

    Vicarious liability is generally limited to regulatory/public-welfare (strict-liability) offenses and usually permits only fines, not imprisonment, absent personal fault. Corporations may be liable for acts of agents within the scope of employment for the corporation's benefit.

13. Define common-law attempt and its two elements.

    Attempt is a specific intent to commit a target crime plus a substantial step (or, at common law, an act beyond mere preparation) toward its commission that falls short of completion.

14. What is the modern (MPC) test for the act element of attempt versus the older common-law tests?

    MPC: a 'substantial step' strongly corroborative of criminal purpose. Older tests: 'proximity' (dangerously close to completion) and 'last act' tests. The substantial-step test reaches conduct earlier than proximity.

15. Is legal impossibility or factual impossibility a defense to attempt?

    Factual impossibility (facts make completion impossible, e.g., empty pocket) is NO defense. True legal impossibility (the intended act is not a crime) IS a defense. (MPC abolishes the distinction except true legal impossibility.)

16. Can a defendant be convicted of both attempt and the completed target crime?

    No. Attempt merges into the completed offense; a defendant cannot be convicted of both attempt and the substantive crime arising from the same conduct.

17. Define solicitation and when it is complete.

    Solicitation is inciting, counseling, advising, or commanding another, with specific intent, to commit a crime. It is complete the instant the request is made; the other person need not agree or act.

18. Does solicitation merge, and what happens if the other party agrees?

    Solicitation merges into the target crime (or into conspiracy if the solicitee agrees). It cannot be punished separately once the agreement (conspiracy) or completed offense occurs.

19. State the elements of common-law conspiracy and the modern/majority variation.

    (1) An agreement between two or more persons, (2) intent to enter the agreement, and (3) intent to achieve the unlawful objective. Common law required no overt act; the majority/federal rule requires an overt act (even mere preparation) by any conspirator.

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