NextGen Bar Exam Criminal Law and Constitutional Criminal Procedure Syllabus

What are the elements of common-law larceny?

(1) Trespassory (wrongful) taking (caption) and (2) carrying away (asportation) of (3) the tangible personal property (4) of another (5) without consent, (6) with intent to permanently deprive the owner at the time of the taking.

Distinguish larceny by trick, embezzlement, and false pretenses.

Larceny by trick — defendant obtains possession (not title) by deception. Embezzlement — fraudulent conversion of property by one already in lawful possession. False pretenses — obtaining title (not just possession) by a knowing false representation of a material present or past fact with intent to defraud.

What are the elements of robbery, and how does it differ from larceny?

Robbery is a larceny (taking of property of another with intent to permanently deprive) from the victim's person or presence, by force or threat of immediate harm. The added force/intimidation element distinguishes robbery from simple larceny.

Distinguish robbery from extortion (blackmail).

Robbery requires taking from the victim's person/presence by immediate force or threats of immediate harm. Extortion is obtaining property through threats of future harm (e.g., exposure, future violence) and the property need not be taken from the victim's presence.

State the common-law elements of burglary.

(1) Breaking and (2) entering (3) the dwelling (4) of another (5) at nighttime (6) with the intent to commit a felony therein (intent must exist at the time of entry).

What are the elements of common-law arson, and how is it modernized?

Common-law arson is the malicious burning of the dwelling of another (requiring some charring, not mere scorching/smoke). Modern statutes extend arson to all structures and one's own property, and many include burning to defraud an insurer.

What are the elements of criminal attempt?

(1) Specific intent to commit the target crime, plus (2) a substantial step (majority/MPC) beyond mere preparation toward its commission. Factual impossibility is no defense; legal impossibility is a defense. Attempt merges into the completed crime.

What are the elements of conspiracy and the bilateral vs. unilateral split?

Conspiracy = (1) an agreement between two or more persons, (2) intent to enter the agreement, (3) intent to achieve the unlawful objective, and (most jurisdictions/MPC) (4) an overt act in furtherance. Common law required a true bilateral (two guilty minds) agreement; the MPC/modern approach is unilateral (one genuinely agreeing party suffices).

Does conspiracy merge into the completed crime, and what is the Pinkerton rule?

No — conspiracy does NOT merge; a defendant can be convicted of both conspiracy and the substantive crime. Under Pinkerton, each conspirator is liable for all crimes of co-conspirators committed in furtherance of the conspiracy and that were reasonably foreseeable.

What are the elements of solicitation?

Solicitation is (1) inciting, counseling, advising, urging, or commanding another (2) to commit a crime, (3) with the intent that the person commit the crime. The offense is complete at the time of the solicitation; it merges into the target crime or attempt if completed.

State the elements of self-defense, including deadly force.

A person may use reasonable force to defend against an imminent unlawful threat. Deadly force is justified only when the defender reasonably believes it is necessary to prevent imminent death or serious bodily harm. An initial aggressor must withdraw and communicate it (or face sudden escalation) to regain the right.

What is the duty to retreat, and what is the 'castle' exception?

The majority/common-law rule imposes no duty to retreat before using deadly force ('stand your ground'). The minority rule requires retreat before deadly force if it can be done safely — but even minority jurisdictions excuse retreat from one's own home (the castle doctrine).

When may force be used in defense of others and in defense of property?

Defense of others: reasonable force to protect a third party the defender reasonably believes has the right to defend himself. Defense of property: reasonable, non-deadly force may be used to protect property; deadly force may NEVER be used solely to defend property.

What is the necessity (choice of evils) defense and how does it differ from duress?

Necessity justifies criminal conduct reasonably necessary to avoid a greater imminent harm caused by natural forces, where the harm avoided exceeds the harm caused. Duress is an excuse based on a human threat of imminent death or serious bodily injury to the defendant or another. Neither defense (traditionally) applies to intentional murder.

State the M'Naghten test for the insanity defense.

Due to a disease of the mind, the defendant at the time of the act either (1) did not know the nature and quality of the act, or (2) did not know that the act was wrong. It is a purely cognitive test.

Identify the four insanity tests and their core focus.

M'Naghten (cognitive: didn't know nature/wrongfulness); Irresistible Impulse (volitional: couldn't control conduct/conform to law); Durham (the act was the product of mental illness — 'but for'); MPC/Model Penal Code (lacked substantial capacity to appreciate criminality OR to conform conduct to law — combines cognitive + volitional).

How does voluntary intoxication differ from involuntary intoxication as a defense?

Voluntary intoxication is a defense only to specific-intent crimes, where it negates the required intent. Involuntary intoxication (unknowing or coerced) is treated like insanity and may be a defense to any crime, including general-intent and strict-liability offenses.

When does mistake of fact serve as a defense, by type of crime?

For specific-intent crimes, any honest mistake (even unreasonable) negating intent is a defense. For general-intent and malice crimes, only a reasonable mistake is a defense. For strict-liability crimes, mistake of fact is never a defense.

State the general rule on mistake of law and its narrow exceptions.

Ignorance or mistake of law is generally NOT a defense. Exceptions: (1) the statute defining the offense makes knowledge of the law an element, (2) reasonable reliance on an official statement of law later found erroneous, (3) the law was not published/reasonably available, or (4) the mistake negates a specific-intent element.

State the two-part test for the entrapment defense (subjective/majority view).

Entrapment exists when (1) the criminal design originated with law enforcement (government inducement), and (2) the defendant was not predisposed to commit the crime before government contact. Merely providing the opportunity to commit a crime is not entrapment.

When does a search or seizure implicate the Fourth Amendment, and what is the threshold test?

The Fourth Amendment applies only to government conduct. A 'search' occurs when government action intrudes on a reasonable expectation of privacy (Katz: subjective expectation society recognizes as reasonable) or physically trespasses on a constitutionally protected area (Jones) to obtain information.

What are the requirements for a valid search warrant?

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

List the major recognized exceptions to the warrant requirement.

ESCAPIST: (E)xigent circumstances/hot pursuit, (S)earch incident to lawful arrest, (C)onsent, (A)utomobile, (P)lain view, (I)nventory, (S)top and frisk (Terry), (T)errorism/special needs. Each still requires its own justification (e.g., probable cause or reasonable suspicion).

What is the scope of a search incident to a lawful arrest?

Police may search the arrestee's person and the area within his immediate control (wingspan) for weapons and evidence. For a vehicle (Gant), they may search the passenger compartment only if the arrestee is unsecured and within reach, or it is reasonable to believe evidence of the crime of arrest is inside.

What are the requirements of the automobile exception?

Police with probable cause to believe a lawfully stopped vehicle contains contraband or evidence of a crime may search the entire vehicle, including the trunk and any container (belonging to driver or passenger) that could hold the item — without a warrant.

State the elements of the plain view exception.

Police may seize an item without a warrant if (1) they are lawfully present at the location from which the item is viewed, (2) the item is in plain view, and (3) its incriminating nature is immediately apparent (probable cause).

What are the requirements for valid consent to a warrantless search?

Consent must be voluntary and intelligent (not coerced); police need not warn of the right to refuse. Any person with actual or apparent authority over the area may consent. A physically present co-occupant's express refusal overrides another occupant's consent (Randolph).

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

The exclusionary rule bars admission, in the prosecution's case-in-chief, of evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments. The fruit of the poisonous tree doctrine extends exclusion to evidence derived from the original illegality.

What are the main exceptions/limitations to the exclusionary rule (ways to admit tainted evidence)?

Independent source, inevitable discovery, attenuation (intervening acts dissipate the taint), and the good-faith reliance on a defective warrant or law. The rule also does not apply to grand juries, civil cases, parole hearings, or impeachment of the defendant's testimony.

What level of suspicion is required for an arrest versus a Terry stop?

An arrest (a seizure of the person taken into custody) requires probable cause. A brief investigatory detention (Terry stop) requires only reasonable, articulable suspicion of criminal activity; a frisk requires reasonable suspicion the person is armed and dangerous.

When does an arrest require a warrant?

Police generally need no warrant to arrest in a public place if they have probable cause, even for a misdemeanor committed in their presence. But a nonconsensual arrest inside the suspect's own home requires an arrest warrant (absent exigent circumstances or consent).

When are Miranda warnings required, and what must they convey?

Miranda warnings are required before custodial interrogation by police. The suspect must be told: the right to remain silent, that anything said can be used against him, the right to an attorney, and that an attorney will be appointed if he cannot afford one.

What constitutes 'custody' and 'interrogation' for Miranda purposes?

Custody = a reasonable person would not feel free to leave and the environment presents the same coercive pressures as a formal arrest. Interrogation = express questioning or its functional equivalent — any words/conduct police should know are reasonably likely to elicit an incriminating response.

How does invoking the right to silence differ from invoking the right to counsel under Miranda?

Invocations must be unambiguous. If the suspect invokes the right to remain silent, police must scrupulously honor it but may re-approach about a different crime after a break. If the suspect invokes the right to counsel, all interrogation must cease on all matters until counsel is present or the suspect reinitiates (Edwards).

When does the Sixth Amendment right to counsel attach, and how is it offense-specific?

It attaches at the initiation of formal adversarial judicial proceedings (formal charge, indictment, arraignment, or preliminary hearing). It is offense-specific — it applies only to the charged offense, so police may question the suspect about unrelated, uncharged crimes.

Contrast the Fifth Amendment (Miranda) right to counsel with the Sixth Amendment right to counsel.

Fifth Amendment counsel attaches only during custodial interrogation, is not offense-specific (bars all questioning once invoked), and must be invoked. Sixth Amendment counsel attaches at formal proceedings regardless of custody/interrogation, is offense-specific, and applies to all critical stages of prosecution.

When is a pretrial lineup or showup a 'critical stage' triggering the right to counsel?

A post-charge corporeal identification (live lineup or showup) is a critical stage requiring counsel under the Sixth Amendment. There is NO right to counsel at photographic identifications or at the taking of physical evidence (fingerprints, handwriting) — or at pre-charge lineups.

What is the due process standard for challenging a pretrial identification?

An identification violates due process and is excluded if the procedure was unnecessarily suggestive AND, under the totality of the circumstances, created a substantial likelihood of irreparable misidentification (i.e., the identification is unreliable).

What are a criminal defendant's core constitutional trial rights?

Right to a public trial, to an impartial jury (for offenses with possible imprisonment over six months), to confront witnesses (Confrontation Clause/cross-examination), to compulsory process for obtaining witnesses, to be present, to effective assistance of counsel, and to proof beyond a reasonable doubt on every element.

State the two-prong Strickland test for ineffective assistance of counsel.

(1) Deficient performance — counsel's representation fell below an objective standard of reasonableness; and (2) prejudice — a reasonable probability that, but for the deficiency, the result of the proceeding would have been different. Both prongs must be shown.

What does the Double Jeopardy Clause protect against, and when does jeopardy attach?

It protects against a second prosecution for the same offense after acquittal or conviction and against 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 defines 'same offense.'