Multistate Bar Examination (MBE) Criminal Law and Procedure Syllabus

What is the Pinkerton rule for conspirator liability?

Under Pinkerton, a conspirator is liable for all crimes of co-conspirators committed in furtherance of the conspiracy and that are a reasonably foreseeable consequence of it. (Some states/MPC reject Pinkerton.)

Does conspiracy merge with the completed crime, and what about Wharton's Rule?

Conspiracy does NOT merge with the completed target crime; a defendant can be convicted of both. Wharton's Rule bars a conspiracy charge where the crime by definition requires the agreed number of participants (e.g., dueling, bigamy, adultery) unless extra parties join.

Identify the four categories of parties to a crime under modern law.

Principal (commits the act/is present), accomplice/aider-and-abettor (aids or encourages with intent that the crime be committed), and accessory after the fact (helps a felon escape/avoid arrest with knowledge of the felony). Modern law abolishes the principal/accessory-before-the-fact distinction.

What mens rea must an accomplice have, and what is the scope of accomplice liability?

The accomplice must have the dual intent to assist/encourage AND intent that the principal commit the crime. The accomplice is liable for the crime itself and all other crimes that are the natural and probable (foreseeable) consequences of the aided conduct.

How can an accomplice or conspirator legally withdraw?

Accomplice: withdraw before the crime by repudiating prior aid, neutralizing assistance, or notifying authorities. Conspiracy: most jurisdictions require an affirmative act notifying co-conspirators in time to abandon plans; withdrawal can cut off liability for later substantive crimes but generally not for the conspiracy itself (MPC allows renunciation that thwarts the crime as a defense).

Define common-law murder and the four states of mind ('malice aforethought') that satisfy it.

Murder is the unlawful killing of a human with malice aforethought. Malice is shown by: (1) intent to kill, (2) intent to inflict serious bodily harm, (3) reckless indifference to human life ('depraved/abandoned heart'), or (4) intent to commit a felony (felony murder).

Distinguish first-degree from second-degree murder.

First-degree murder is a statutory category requiring premeditation and deliberation (or a killing by an enumerated method or during an enumerated felony). Second-degree murder is the default/catch-all malice murder that is not elevated to first degree.

State the felony-murder rule and its key limitations.

A killing during the commission or attempted commission of an inherently dangerous felony (commonly BARRK: Burglary, Arson, Rape, Robbery, Kidnapping) is murder. Limits: the felony must be independent of the killing, the death must be foreseeable, the felony must be in progress (before reaching a place of temporary safety), and many courts bar liability for the death of a co-felon under the agency theory.

Define voluntary manslaughter.

An intentional killing committed in the heat of passion arising from adequate (legally sufficient) provocation, with no reasonable cooling-off period, where the defendant in fact did not cool off. It also includes some imperfect self-defense killings.

Define involuntary manslaughter and its two theories.

An unintentional killing resulting from (1) criminal negligence (or recklessness) or (2) the commission of an unlawful act (misdemeanor-manslaughter, i.e., during a misdemeanor or a non-BARRK felony).

What is 'imperfect self-defense' and its effect?

When a defendant honestly but unreasonably believes deadly force is necessary, or is the initial aggressor, the killing is not justified but may be reduced from murder to voluntary manslaughter.

Distinguish battery from assault at common law.

Battery is an unlawful application of force to another resulting in bodily harm or offensive touching (general intent). Assault is either an attempt to commit a battery (specific intent) or the intentional creation of a reasonable apprehension of imminent bodily harm.

Define common-law rape and kidnapping.

Rape is unlawful sexual intercourse with a victim without consent (by force, threat, fraud as to the act, or incapacity). Kidnapping is the unlawful confinement of a person involving either movement (asportation) or concealment in a secret place.

Define common-law larceny.

The trespassory taking and carrying away (asportation) of the tangible personal property of another, with the specific intent to permanently deprive the owner of it, accomplished at the moment of taking.

Distinguish larceny, embezzlement, and false pretenses.

Larceny: wrongful taking of possession with intent to steal. Embezzlement: fraudulent conversion of property already in the defendant's lawful possession (entrusted). False pretenses: obtaining TITLE to property by a knowing false representation of a material present/past fact with intent to defraud.

Distinguish false pretenses from larceny by trick.

In false pretenses the victim is deceived into transferring TITLE (ownership). In larceny by trick the deception induces the victim to transfer only POSSESSION, with title remaining in the victim.

Define robbery and extortion, and contrast them.

Robbery is a larceny from the victim's person or presence by force or by threat of imminent harm. Extortion (blackmail) is obtaining property by threats of future harm and need not be in the victim's presence.

Define common-law burglary and how modern statutes expand it.

Common law: breaking and entering the dwelling of another at nighttime with the intent to commit a felony inside (intent at time of entry). Modern statutes typically eliminate the breaking, dwelling, nighttime, and 'felony only' requirements, covering any structure entered with intent to commit any crime.

Define common-law arson and the modern expansion.

Common law: the malicious burning of the dwelling of another (requires charring, not mere scorching/smoke). Modern law extends arson to any structure and to one's own property (e.g., to defraud an insurer).

What are the requirements for non-deadly and deadly force in self-defense?

Non-deadly force: a reasonable belief of imminent unlawful force may be met with proportional non-deadly force. Deadly force: a reasonable belief of imminent death or serious bodily harm; majority rule imposes no duty to retreat, but a retreat-jurisdiction minority requires safe retreat before deadly force (with exceptions for the home).

When may an initial aggressor regain the right of self-defense?

An initial aggressor regains the right if (1) he effectively withdraws and communicates that withdrawal, or (2) the victim suddenly escalates a minor fight into one involving deadly force.

State the defense-of-others, defense-of-property, and necessity rules.

Defense of others: reasonable belief the person aided would be entitled to self-defense. Defense of property: reasonable non-deadly force only; deadly force is never allowed solely to protect property. Necessity (choice of evils): conduct is justified to avoid a greater imminent harm from natural/non-human forces; not available if the defendant created the situation.

Compare the M'Naghten, irresistible-impulse, MPC, and Durham insanity tests.

M'Naghten: a mental disease meant the defendant did not know the nature of the act or that it was wrong. Irresistible impulse: defendant could not control conduct or conform to the law. MPC/substantial capacity: lacked substantial capacity to appreciate criminality OR to conform conduct. Durham: the crime was the product of a mental illness ('but-for' the illness).

Distinguish voluntary from involuntary intoxication as an excuse.

Voluntary intoxication is a defense only to specific-intent crimes (to negate that intent). Involuntary intoxication (unknowing, coerced, or by prescription) is treated like insanity and can be a defense to any crime, including general-intent and strict-liability offenses.

How does infancy excuse criminal liability at common law?

Under 7: no criminal liability (conclusive). Ages 7–14: rebuttable presumption against capacity. 14 and over: treated as an adult. (Modern statutes vary and often channel juveniles to juvenile court.)

Distinguish mistake of fact from mistake of law as defenses.

Mistake of fact: a defense if it negates the required mens rea — any honest mistake negates specific intent, but only a reasonable mistake negates general intent; never a defense to strict liability. Mistake of law: generally NOT a defense, except narrow situations (reliance on an official statement of law, no fair notice, or where knowledge of the law is itself an element).

Explain entrapment and its two-part test.

Entrapment requires (1) the criminal design originated with law enforcement and (2) the defendant was not predisposed to commit the crime before government contact. Merely providing an opportunity to a predisposed defendant is not entrapment (subjective majority test).

What are the two threshold requirements for a Fourth Amendment claim, and what is required for standing?

There must be (1) government action and (2) a search or seizure that intrudes on a reasonable (subjective + objectively reasonable) expectation of privacy. Standing requires the defendant's own reasonable expectation of privacy was violated (a possessory/property interest or legitimate presence).

What are the requirements for a valid arrest/search warrant?

It must be (1) based on probable cause, (2) supported by oath/affirmation, (3) issued by a neutral and detached magistrate, and (4) describe with particularity the place to be searched and items/persons to be seized.

List the major recognized exceptions to the warrant requirement (ESCAPIST/SPACES).

Search incident to lawful arrest; Consent; Automobile exception; Plain view; Stop and frisk (Terry); Exigent circumstances (hot pursuit, evanescent evidence, emergency aid); plus special-needs/administrative and inventory searches. Each has its own probable-cause or reasonable-suspicion threshold.

Compare the standards/scope of a Terry stop-and-frisk with an arrest.

A Terry stop requires reasonable suspicion (articulable facts) of criminal activity and permits a brief detention; the frisk is a pat-down of outer clothing for weapons, allowed on reasonable suspicion the person is armed and dangerous. An arrest requires probable cause and permits a full search incident to arrest (the arrestee's person and area within immediate control/wingspan).

State the Miranda requirements and when warnings are triggered.

Before custodial interrogation, police must warn that the suspect has the right to remain silent, anything said can be used against them, and they have the right to counsel (appointed if indigent). Triggered only by 'custody' (not free to leave, arrest-like) plus 'interrogation' (express questioning or its functional equivalent likely to elicit a response).

How do the Fifth and Sixth Amendment rights to counsel differ at the interrogation stage?

The Fifth Amendment (Miranda/Edwards) right to counsel must be unambiguously invoked, is not offense-specific, and bars further interrogation on any crime until counsel is present. The Sixth Amendment right attaches automatically at formal charging, is offense-specific, and bars deliberate elicitation about that charged offense.

What due process standard governs pretrial identification procedures (lineups/photo arrays)?

An identification is excluded only if the procedure was unnecessarily suggestive AND created a substantial likelihood of irreparable misidentification (assessed by reliability factors). A post-charge in-person lineup or showup also triggers the Sixth Amendment right to counsel (but not photo arrays).

State the exclusionary rule and the 'fruit of the poisonous tree' doctrine.

Evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments is generally inadmissible in the prosecution's case-in-chief, as is evidence derivatively obtained from the illegality (the 'fruit of the poisonous tree').

List the exceptions that allow admission of evidence despite a constitutional violation (limits on the exclusionary rule).

Independent source; inevitable discovery; attenuation (intervening acts dissipate the taint); good-faith reliance on a defective warrant or on a later-invalidated law; the knock-and-announce exception; isolated negligence; and impeachment use of certain illegally obtained statements. Also no exclusion in grand jury, civil, and parole proceedings.

Identify the core trial rights guaranteed to a criminal defendant.

The rights to a speedy and public trial, an impartial jury (for offenses with possible imprisonment over six months), to confront/cross-examine witnesses, to compulsory process for defense witnesses, to assistance of counsel, the privilege against self-incrimination, and proof of guilt beyond a reasonable doubt on every element.

What is the standard for ineffective assistance of counsel (Strickland)?

The defendant must show (1) counsel's performance was deficient (fell below an objective standard of reasonableness) and (2) prejudice — a reasonable probability that, but for the deficiency, the result would have been different.

Explain the double jeopardy protections and when jeopardy attaches.

The Fifth Amendment bars (1) retrial after acquittal, (2) retrial after conviction, and (3) multiple punishments for the same offense. Jeopardy attaches in a jury trial when the jury is sworn, and in a bench trial when the first witness is sworn. The Blockburger 'same elements' test determines whether two offenses are the 'same.'