Criminal Law Essentials — Bar Exam

The MBE rarely asks “is this murder?” outright; it gives a fact pattern and makes you pick the most serious crime the facts support, forcing you up the homicide ladder. The “tell” is which malice route applies: a death during a dangerous felony (felony murder), conduct showing extreme recklessness toward many, like firing into a crowd (depraved heart), or a deadly weapon aimed at a vital organ, which supports an inference of intent to kill. When premeditation is genuinely absent, an intentional malice killing is second-degree murder, not manslaughter—students wrongly drop two rungs.

Watch the inchoate traps: there is no attempted felony murder and no attempted depraved-heart murder, because attempt demands a specific intent to kill, not mere recklessness. On felony-murder limits, the agency rule (majority) means a co-felon’s death from a victim’s or officer’s return fire is usually not felony murder, and the predicate felony must be independent of the killing (the merger rule bars assault-based felony murder).

The MBE loves robbery’s timing-of-force trap. Force or intimidation must accomplish the taking, but because larceny is a continuing offense through asportation, the majority (and usual MBE) rule treats force used to retain the loot or escape before reaching safety as robbery too — so a thief who is spotted and then struggles to keep the property has committed robbery, not merely larceny plus a battery. The narrow exception is a larceny that is fully complete with the property abandoned: later force, used only to avoid arrest, is a separate assault. Watch the presence tell — property in the victim’s vicinity counts, so emptying a register while holding the clerk at gunpoint is robbery even though the cash never touched the clerk.

Robbery’s threat must be of immediate harm; a threat of future harm is extortion (blackmail). Don’t confuse robbery with burglary — burglary is complete at entry with felonious intent and needs no taking at all. Breaking in intending to rob, then robbing inside, is two crimes, not one.

The MBE’s favorite burglary trap is the timing of intent: a defendant breaks in, then decides to steal once inside. That defeats common-law burglary because the felonious intent must coexist with the entry—watch for fact patterns where the defendant enters to escape weather or sleep, and only later forms criminal intent. A second classic tell is completion: burglary is complete at the moment of entry with the requisite intent, so the answer can be guilty even though the intended felony (often larceny) was never carried out. The intended felony also need not be theft—intent to commit assault, rape, or any felony satisfies the element.

Don’t conflate burglary with its sibling theft crimes. Larceny, robbery, and burglary are separate offenses, and a defendant can generally be convicted of both burglary and the completed larceny inside (no merger under the majority rule). Robbery requires force or intimidation against a person; burglary punishes the unlawful entry. Memory hook: burglary buys the ticket at the door—guilt locks in on entry, not on whatever happens after.

The MBE rarely tests “is this larceny?” head-on; instead it hands you a fact pattern and makes you pick the single correct theft crime among larceny, embezzlement, and false pretenses. The dispositive question is what the defendant obtained and how he got it: mere custody or possession (larceny if he then carries it off trespassorily), lawful possession later converted (embezzlement), or title transferred by a lie (false pretenses). Watch the employee tell — a rank-and-file employee handling the till has only custody, so pocketing cash is larceny, not embezzlement (though a manager or officer with substantial control has true possession, making conversion embezzlement).

The classic trap is the larceny-by-trick overlap: fraud that yields only possession is still larceny (by trick), while fraud yielding title is false pretenses — students reflexively choose false pretenses whenever a lie appears. Don’t confuse the intent-to-permanently-deprive timing with robbery (which merely adds force or intimidation at the taking) or with common-law burglary’s intent-at-entry rule. Hook: custody = larceny, possession = embezzlement, title = false pretenses.

The classic MBE trap targets the plurality requirement: under the older bilateral rule you need two genuinely guilty minds, so an agreement with only an undercover officer or feigned accomplice yields no conspiracy — but the MPC’s unilateral approach convicts the lone real agreer regardless (most modern statutes follow the MPC). Watch for Wharton’s Rule (where the crime inherently needs two parties, like dueling or bribery, there’s no conspiracy among just those necessary parties unless an extra person joins) and the Gebardi/legislative-protection exception (a member of the class the statute protects, e.g., the transported minor, can’t be a co-conspirator). Mens rea is specific intent: intent to agree and intent to achieve the criminal objective.

Students wrongly assume conspiracy mirrors attempt. It does not — and it reaches further than Pinkerton liability does (accomplice liability needs actual aid or encouragement of the specific crime; Pinkerton needs only a foreseeable in-furtherance crime). Unlike with the merging attempt charge, factual impossibility is never a defense. Memory hook: two guilty minds, one shared aim — pull either and the bilateral conspiracy collapses.

The MBE loves the asymmetry between the two rights: invoking the right to counsel under Edwards bars all police-initiated questioning (about any crime — Roberson) until counsel is present or the suspect reinitiates, but merely invoking the right to silence only requires officers to “scrupulously honor” it — they may re-approach after a significant time lapse with fresh warnings (Mosley). The classic tell is “maybe I should talk to a lawyer”; under Davis, an ambiguous request is no invocation, so questioning lawfully continues (officers need not even clarify). And per Berghuis, silence alone doesn’t invoke — the suspect must unambiguously assert it.

Do not confuse the Fifth Amendment Miranda counsel right (custody-triggered, not offense-specific) with the Sixth Amendment right, which attaches at formal charging and is offense-specific (McNeil, Texas v. Cobb). And keep Miranda separate from search and seizure doctrines, gauged by the warrant/reasonableness framework and the exclusionary rule: a Miranda defect concerns statement admissibility and won’t, by itself, suppress physical fruits (Patane).

The classic MBE pattern hands you a warrantless search; the answer turns on whether one recognized exception fits, not on the warrant requirement itself. Once officers hold a warrant, the issue shifts to execution — knock-and-announce and scope limited to the particular description. They may detain occupants present during a residential search (Summers) but may not search persons merely present without individualized probable cause (Ybarra). A facially valid but defective warrant still saves the evidence under the good-faith rule (Leon) — unless it rested on a “bare bones” affidavit, the affiant lied, or the magistrate abandoned neutrality.

Do not conflate the concepts: a search needs justification only where privacy is reasonably expected; a seizure is graded by intrusion (a brief stop versus a full arrest). Remember the two probable-cause flavors: a search warrant needs PC that evidence is in the place now; an arrest warrant, PC that this person committed the crime. A public felony arrest needs no warrant (Watson) — only entering the home to arrest does (Payton).

The MBE almost always tests this as a threshold question: before asking whether police had a warrant or an exception, ask whether a search even occurred. The classic tell is a fact pattern with no warrant and no traditional exception — if no reasonable expectation of privacy was infringed (and there was no physical trespass), the Fourth Amendment never triggers and the evidence comes in regardless. Two distinct hooks make conduct a search: sense-enhancing technology not in general public use aimed at a home (a thermal imager, Kyllo), and a physical trespass onto curtilage to gather information (walking a drug dog onto the front porch, Jardines). By contrast, a dog sniff of luggage in public (Place) or of a car’s exterior during a lawful stop (Caballes) is not a search, because it reveals only contraband.

Do not confuse search (privacy) with seizure (possessory interest, or restraint on freedom of movement) — Place itself was no search but the luggage detention was a seizure. The trap is jumping straight to warrant exceptions when the threshold isn’t met. Memory hook: no privacy, no problem — if society wouldn’t deem the expectation reasonable, stop analyzing.

The classic MBE pattern hands you facts about police-citizen contact and asks when the seizure occurred — because that moment fixes which justification the state needed. Watch for the “tell”: an officer’s show of authority seizes a suspect only if the person actually submits; a fleeing suspect who ignores commands is not seized until physically caught (California v. Hodari D.). During a frisk, an officer may seize an object under the plain-feel doctrine only if its contraband nature is immediately apparent by touch — squeezing or manipulating it exceeds the pat-down’s scope (Minnesota v. Dickerson, where the seizure was actually held unlawful for that reason).

Do not confuse seizure with search: a seizure burdens a possessory interest, a search invades a privacy interest, so a single act (entering a home, opening a trunk) can be both — yet either can occur alone. The classic trap is demanding probable cause for every detention: a brief investigatory stop needs only reasonable suspicion, and a true consensual encounter needs no justification at all. Always match the intrusion to the quantum of suspicion.

On the MBE the attempt question rarely turns on whether intent existed; it turns on how close the defendant got. The “tell” is a fact pattern where the actor is interrupted before completion, and you must sort preparation from a punishable attempt. Watch the jurisdiction cue: “strongly corroborative” of the actor’s purpose signals the Model Penal Code test, which draws the line earlier than the older common-law “dangerous proximity” or “last act” approach — pick the answer matching the standard the question supplies, not your default.

The classic trap is abandonment: at common law (and in federal court) the completed attempt stands and renouncing it is no defense, while the MPC recognizes voluntary and complete renunciation. It is not voluntary if driven by an unforeseen difficulty (a tougher victim) or a rising risk of getting caught. Don’t confuse attempt with conspiracy — conspiracy is complete at the agreement (plus an overt act where required) and never merges, whereas attempt dissolves into the completed crime. Memory hook: conspiracy survives, attempt dissolves.