You’re staring at your Criminal Law and Procedure outline, trying to figure out which version of murder applies to the guy who punched someone once during a bar fight, only to have the victim fall, hit his head, and die three days later. Was that intent to kill? Serious bodily harm? Depraved heart? And wait—does the eggshell skull rule apply here, or does that break causation?
Criminal Law and Procedure consistently trips up bar examinees because it demands both memorization of precise elements and the ability to apply those rules to messy fact patterns. The MBE loves testing the boundaries between similar offenses—first degree versus second degree murder, larceny versus embezzlement, attempt versus conspiracy. This MBE criminal law study guide breaks down the subject into manageable chunks so you can tackle it systematically.
Understanding the Structure of MBE Criminal Law
The NCBE divides Criminal Law and Procedure into distinct categories, and understanding this structure helps you organize your studying. You’re dealing with four major areas:
Homicide offenses make up roughly 40% of Criminal Law questions. This includes common law murder, first and second degree murder, voluntary and involuntary manslaughter, and felony murder. The examiners love testing the distinctions between these offenses because students frequently confuse them under pressure.
Other crimes account for another significant portion. This covers the property crimes (larceny, embezzlement, robbery, burglary, false pretenses), crimes against the person (assault, battery, rape, kidnapping), and miscellaneous offenses like arson and forgery.
Inchoate crimes and parties round out the substantive criminal law portion. Attempt, conspiracy, and solicitation appear regularly, often combined with accomplice liability questions that require you to determine who’s responsible for what.
Criminal Procedure is tested separately but comprises about 50% of the combined Criminal Law and Procedure questions on the MBE. This includes Fourth Amendment search and seizure, Fifth Amendment privilege against self-incrimination, Sixth Amendment right to counsel, and the exclusionary rule with its exceptions.
Mastering Homicide: Where Most Students Struggle
Let’s address the elephant in the room. Homicide questions are where bar prep dreams go to die. The issue isn’t that the rules are impossibly complex—it’s that there are multiple overlapping frameworks, and the MBE expects you to know which one applies.
Common law murder requires malice aforethought, which sounds straightforward until you realize malice has four different meanings. Intent to kill is the obvious one. But malice also includes intent to inflict serious bodily harm, depraved heart (extreme recklessness), and felony murder. That bar fight hypothetical from the opening? If the defendant only intended to punch the victim once, you’re likely looking at intent to inflict serious bodily harm—which satisfies malice and makes it murder.
First degree murder requires premeditation and deliberation. Here’s the trap: students think premeditation requires extensive planning. It doesn’t. Premeditation can be formed in an instant, but it requires actual reflection on the decision to kill. The difference between first and second degree murder often comes down to whether the defendant had that moment of reflection before pulling the trigger.
Voluntary manslaughter is murder that’s been mitigated by adequate provocation. You need four elements: provocation that would arouse sudden and intense passion in a reasonable person, the defendant was actually provoked, insufficient time for a reasonable person to cool off, and the defendant didn’t cool off. The classic example is discovering your spouse in the act of adultery. But here’s what trips people up—mere words alone are generally not adequate provocation at common law, no matter how insulting.
Involuntary manslaughter involves an unintended killing from criminal negligence or during a misdemeanor. The key distinction from murder is the absence of intent to kill or cause serious bodily harm. If the defendant was merely grossly negligent rather than recklessly indifferent to human life, you’re in involuntary manslaughter territory rather than depraved heart murder.
Felony murder deserves its own discussion because it’s both frequently tested and frequently misunderstood. An unintended killing during an inherently dangerous felony qualifies as murder—the intent to commit the felony supplies the malice. Remember BARRK: Burglary, Arson, Rape, Robbery, and Kidnapping. But watch for the limitations. The felony must be independent of the killing (merger doctrine), the death must be foreseeable, and under the majority agency theory, the defendant or an accomplice must have caused the death.
Property Crimes: Distinguishing the Trespassory Taking Family
The property crimes form a related family that students constantly mix up. The distinctions matter because the MBE will present fact patterns where multiple crimes seem plausible.
Larceny is the trespassory taking and carrying away of another’s personal property with intent to permanently deprive. The key word is “trespassory”—the taking must be wrongful from the start. If a cashier pockets money from the register, that’s not larceny because the cashier had lawful possession.
Embezzlement fills that gap. It’s the fraudulent conversion of property by someone already in lawful possession. That cashier committed embezzlement, not larceny, because the possession was initially lawful.
Larceny by trick occurs when the defendant obtains possession through fraud. The victim intends to transfer possession but not title. If I trick you into lending me your car by lying about why I need it, that’s larceny by trick.
False pretenses is obtaining title through fraud. If I trick you into selling me your car with a fake cashier’s check, that’s false pretenses because you intended to transfer title.
Robbery is larceny plus force or intimidation. The force must be used to obtain or retain the property. If the defendant snatches a purse and then punches the victim who chases him, that’s still robbery—the force was used to retain the property during the transaction.
This criminal procedure bar exam review component requires you to distinguish these crimes quickly. The MBE won’t ask “Is this larceny or embezzlement?” It’ll give you a detailed fact pattern and expect you to identify which crime occurred based on subtle differences in how the property changed hands.
Inchoate Crimes: The Specific Intent Traps
Attempt and conspiracy are specific intent crimes, which means mistake of fact can be a defense—but only regarding the elements of the target offense, not regarding the attendant circumstances.
Attempt requires specific intent to commit the target offense plus a substantial step beyond mere preparation. The substantial step test under the Model Penal Code requires conduct that strongly corroborates the defendant’s criminal purpose. Buying a gun isn’t enough for attempted murder. Driving to the victim’s house with the loaded gun and waiting outside might be.
The impossibility defenses confuse everyone. Factual impossibility is not a defense. If you try to pick an empty pocket, you’re guilty of attempted larceny even though completion was impossible. Legal impossibility is a defense. If you try to bribe someone you think is a juror but who actually isn’t, you haven’t attempted bribery because what you tried to do wasn’t actually a crime.
Conspiracy requires an agreement between two or more people and intent to achieve the objective. Under the majority rule, you also need an overt act, though even minor preparatory acts suffice. The critical issue is whether you’re in a bilateral jurisdiction (requiring two guilty minds) or a unilateral jurisdiction (where one guilty mind suffices). If you “conspire” with an undercover cop, you’re guilty under the unilateral Model Penal Code approach but not under the bilateral common law approach.
The Pinkerton rule extends conspiracy liability to all foreseeable crimes committed by co-conspirators in furtherance of the conspiracy. If you conspire to rob a bank and your co-conspirator shoots a guard, you’re liable for that shooting if it was a reasonably foreseeable consequence of the robbery conspiracy.
Criminal Procedure: Constitutional Protections and Their Exceptions
Criminal procedure questions test whether evidence should be suppressed or whether a defendant’s rights were violated. You need to know both the rules and their exceptions.
Fourth Amendment search and seizure issues dominate this area. A search occurs when the government violates a reasonable expectation of privacy. Seizures require meaningful interference with a possessory interest. But even if a search occurred, it’s constitutional if the officer had a warrant supported by probable cause or if an exception applies.
The warrant exceptions are heavily tested: search incident to lawful arrest, automobile exception, plain view, consent, stop and frisk, hot pursuit, and exigent circumstances. Each has specific requirements. For example, a search incident to arrest must be contemporaneous with the arrest and limited to the arrestee’s wingspan—the area within immediate control.
Fifth Amendment privilege against self-incrimination protects testimonial evidence, not physical evidence. You can be compelled to provide a blood sample or handwriting exemplar, but not to answer incriminating questions. Miranda warnings are required for custodial interrogation. The defendant must be in custody (not free to leave) and subjected to interrogation (express questioning or its functional equivalent).
Sixth Amendment right to counsel attaches at the initiation of formal proceedings and is offense-specific. Once charged with robbery, the defendant has a right to counsel regarding that robbery, but police can still question him about an uncharged murder without counsel present.
The exclusionary rule bars the prosecution from using evidence obtained in violation of the defendant’s constitutional rights. But watch for exceptions: inevitable discovery, independent source, attenuation, and good faith. If officers reasonably relied on a warrant that’s later found invalid, the good faith exception may save the evidence from suppression.
Mental States: The Foundation of Everything
One reason Criminal Law feels overwhelming is that mental states permeate every analysis. You cannot evaluate whether a crime occurred without determining what the defendant intended.
Specific intent crimes require the defendant to have a particular purpose or objective. Murder with intent to kill, larceny, burglary, attempt, conspiracy, and false pretenses are all specific intent crimes. This matters for defenses—voluntary intoxication and unreasonable mistake of fact can negate specific intent.
General intent crimes require only that the defendant intend to commit the act that constitutes the crime. Battery, rape, kidnapping, and false imprisonment are general intent crimes. Voluntary intoxication is not a defense to general intent crimes.
Malice crimes (common law murder and arson) require reckless disregard of a known risk. Voluntary intoxication is not a defense.
Strict liability crimes require no mental state regarding at least one element. Statutory rape is the classic example—mistake about the victim’s age is not a defense.
When you’re working through an MBE question, identify the mental state requirement first. It determines which defenses are available and what the prosecution must prove.
Defenses: Justification versus Excuse
Criminal defenses fall into two categories: justifications (the conduct was not wrongful) and excuses (the defendant is not blameworthy).
Self-defense justifies the use of reasonable force to protect against an imminent unlawful attack. Deadly force is justified only when the defendant reasonably believes it’s necessary to prevent death or serious bodily harm. The majority rule imposes no duty to retreat before using deadly force, though some jurisdictions require retreat if safely possible (except in one’s own home).
Imperfect self-defense applies when the defendant honestly but unreasonably believed deadly force was necessary. This reduces murder to voluntary manslaughter in jurisdictions recognizing the doctrine.
Insanity is an excuse defense with multiple tests. The M’Naghten test asks whether the defendant knew the nature and quality of the act or knew it was wrong. The irresistible impulse test asks whether the defendant could control his conduct. The Model Penal Code test asks whether the defendant lacked substantial capacity to appreciate the criminality of his conduct or conform his conduct to law.
Intoxication is a defense only to specific intent crimes, and only if it was involuntary or prevented the defendant from forming the required intent. Voluntary intoxication is never a defense to general intent, malice, or strict liability crimes.
How to Organize 104 Rules for Active Recall
Here’s your problem: Criminal Law and Procedure contains roughly 104 distinct rules, each with multiple elements and exceptions. Traditional outlines present these rules linearly, which makes them nearly impossible to memorize efficiently.
You need a system that forces active recall—testing yourself on elements rather than passively rereading. When you see “felony murder” on an MBE question, you should instantly recall BARRK plus the four limitations. When you see a property crime fact pattern, you should immediately run through the taking/possession/title analysis.
This is where structured study materials make the difference. FlashTables Criminal Law & Procedure organizes all 104 rules in a two-column format specifically designed for self-testing. Cover the right column, test yourself on the elements, check your answer. The format mirrors how the MBE tests you—by requiring instant recall of precise rule statements under pressure.
Your Memorization Priorities
Not all 104 rules are equally tested. Focus your initial memorization efforts here:
Homicide offenses are the highest priority. Nail down the elements of common law murder, first and second degree murder, voluntary and involuntary manslaughter, and felony murder with all limitations. Understand causation rules, including when intervening causes break the chain.
Property crimes are your second priority. Master the distinctions between larceny, embezzlement, larceny by trick, false pretenses, and robbery. Know what each requires regarding possession versus title.
Inchoate crimes come next. Memorize the elements of attempt and conspiracy, plus the impossibility defenses and abandonment rules. Understand Pinkerton liability.
Constitutional criminal procedure is massive but testable. Focus on Fourth Amendment warrant exceptions, Miranda requirements and exceptions, and the exclusionary rule with all its exceptions.
Mental states and defenses should be studied in conjunction with the substantive crimes. You can’t apply self-defense rules without understanding what crime the defendant would otherwise have committed.
Putting It Together: The MBE Testing Pattern
The MBE doesn’t test rules in isolation. A typical Criminal Law question gives you a fact pattern, then asks what crime the defendant committed or whether evidence should be suppressed. You need to:
- Identify what area of law is being tested (homicide, property crime, constitutional procedure)
- Recall the relevant rule and its elements
- Apply each element to the facts systematically
- Eliminate wrong answers by identifying which element isn’t satisfied
Speed matters. You have roughly 1.8 minutes per question. You cannot afford to pause and try to reconstruct rule elements from memory. The elements must be instantly accessible.
This criminal law MBE prep strategy requires repetition. The first time you test yourself on the elements of voluntary manslaughter, you’ll struggle. The tenth time, you’ll recall them instantly. The twentieth time, you’ll be able to apply them to a complex fact pattern in under two minutes.
Final Takeaways for Your Criminal Law Study Plan
Start by organizing the subject into the four major areas: homicide, other crimes, inchoate crimes, and criminal procedure. Master the homicide rules first—they’re the most heavily tested and the most confusing.
For property crimes, focus on the distinctions between similar offenses. Create a mental flowchart: Did the defendant have lawful possession initially? If yes, embezzlement. If no, was title transferred? If yes, false pretenses. If only possession, larceny by trick.
For inchoate crimes, memorize the elements of attempt and conspiracy separately, then learn how they interact with substantive offenses.
For criminal procedure, organize by constitutional amendment. Fourth Amendment issues involve searches and seizures. Fifth Amendment issues involve self-incrimination and Miranda. Sixth Amendment issues involve right to counsel.
Mental states and defenses cut across everything. Make sure you can identify whether a crime requires specific intent, general intent, malice, or strict liability—that determines which defenses apply.
The difference between passing and failing Criminal Law questions often comes down to whether you’ve memorized the precise elements. The MBE doesn’t reward general understanding. It rewards the ability to recall that adequate provocation requires four specific elements, or that felony murder has four specific limitations, or that Miranda requires both custody and interrogation.
If you want all 104 Criminal Law and Procedure rules organized for systematic memorization, FlashTables structures them in a format designed for active recall testing. You can find the complete Criminal Law & Procedure tables at getflashtables.com, either as an individual subject or as part of the Complete MBE Bundle covering all seven subjects.
Focus your energy on memorization first, then practice application. You cannot apply rules you haven’t memorized. Once the elements are locked in, MBE questions become pattern recognition exercises rather than memory scrambles.