Study guide
This chapter merges two NCBE-tested subjects that share a courtroom: Criminal Law and Procedure, and Evidence. Criminal Law and Procedure draws 25 MBE questions, about half from constitutional protections of the accused; Evidence draws another 25, always answered under the Federal Rules of Evidence as currently in effect, regardless of what any particular state does. Substantive crimes here reflect common-law and majority-rule definitions as tested by the NCBE.
Homicide and Other Core Crimes
Common-law murder is the killing of another human being with malice aforethought, which can be shown by intent to kill, intent to cause serious bodily harm, extreme recklessness showing a depraved heart, or intent to commit certain dangerous felonies. Premeditation and deliberation, where required for first-degree murder, mean the killer actually reflected on the decision to kill, even briefly. Voluntary manslaughter is an intentional killing mitigated to a lesser crime because of adequate provocation, meaning provocation that would inflame a reasonable person and the defendant did not have a reasonable time to cool off. Involuntary manslaughter covers unintentional killings from criminal negligence or during an unlawful act. Felony murder imposes liability for a death caused during the commission of an inherently dangerous felony, though most jurisdictions limit it to deaths that are a foreseeable result of the felony and exclude deaths caused by a non-felon resisting the crime under the agency theory. Beyond homicide, know the elements of larceny (trespassory taking and carrying away of another's personal property with intent to permanently deprive), robbery (larceny from the person or presence of another by force or threat of force), burglary (at common law, breaking and entering the dwelling of another at night with intent to commit a felony inside; modern statutes relax these elements considerably), and arson (malicious burning of a structure). Example: Priya punches Owen during a bar argument, not intending to kill or seriously injure him, but Owen falls, hits his head, and dies; because a single punch shows intent to commit only an ordinary battery, not serious bodily harm, this is the classic involuntary manslaughter pattern, not murder.
Inchoate Offenses, Parties, and General Principles
Attempt requires specific intent to commit the target crime plus a substantial step toward its commission; factual impossibility is no defense, but true legal impossibility is. Conspiracy requires an agreement between two or more persons to commit an unlawful act plus, in most jurisdictions and under federal law, an overt act in furtherance of it; each conspirator is liable for the foreseeable crimes of co-conspirators committed in furtherance of the conspiracy under the Pinkerton doctrine. Solicitation is complete once the defendant asks or encourages another to commit a crime, regardless of the response. Common law divided participants into principals and accessories, but modern law generally treats anyone who assists before or during the crime as an accomplice, liable for the crime itself and its foreseeable consequences; an accessory after the fact who merely helps someone evade justice after the crime is complete is guilty of a separate, lesser offense. On general principles, most crimes require a voluntary act (or an omission where a legal duty to act exists) combined with the required mental state, whether specific intent, general intent, malice, or strict liability, which requires no culpable mental state at all. A mistake of fact is a defense if it negates the required mental state; mistake of law is not a defense, with narrow exceptions. Voluntary intoxication may negate specific intent but not general intent or recklessness; involuntary intoxication is treated like insanity. Example: Marcus and Leah agree to rob a store, and during the robbery, Leah unexpectedly shoots the clerk; Marcus can be liable for that shooting under Pinkerton if it was a foreseeable consequence of the robbery they agreed to commit.
Constitutional Criminal Procedure
The Fourth Amendment protects against unreasonable searches and seizures. A search occurs when the government intrudes on a reasonable expectation of privacy; a warrant supported by probable cause is generally required, but recognized exceptions include search incident to a lawful arrest, the automobile exception, plain view, consent, exigent circumstances, and stop-and-frisk based on reasonable suspicion. Evidence obtained in violation of the Fourth Amendment is generally excluded under the exclusionary rule, along with derivative evidence under the fruit-of-the-poisonous-tree doctrine, subject to exceptions such as independent source, inevitable discovery, attenuation, and good-faith reliance on a facially valid warrant. The Fifth Amendment privilege against self-incrimination requires Miranda warnings before custodial interrogation; statements obtained in violation are excluded, though the physical fruits of an un-Mirandized but voluntary statement may still be admissible, and the privilege can be invoked only for testimonial, incriminating evidence. The Sixth Amendment right to counsel attaches at the initiation of formal adversarial proceedings and is offense-specific, while the Fifth Amendment Miranda-based right to counsel is invoked by the suspect during custodial interrogation and is not offense-specific once invoked. Identification procedures violate due process only if unnecessarily suggestive and unreliable under the totality of the circumstances. The Double Jeopardy Clause bars retrial for the same offense after acquittal or conviction, using the same-elements test to determine whether two charges are really the same offense. Example: Police stop a car for a broken taillight and, smelling marijuana, search the trunk without a warrant; this is likely valid under the automobile exception because the smell supplied probable cause to believe evidence of a crime was present.
Relevance, Character Evidence, and Impeachment Under the FRE
Evidence is relevant, and therefore generally admissible, if it has any tendency to make a fact of consequence more or less probable than it would be without it. Even relevant evidence may be excluded under Rule 403 if its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. Character evidence to prove a person acted in conformity with that character on a particular occasion is generally inadmissible in civil cases and in criminal cases when offered by the prosecution to prove the defendant's guilt, but the criminal defendant may open the door by offering evidence of their own good character, or the victim's character in limited circumstances, and the prosecution may then rebut. Evidence of other crimes, wrongs, or acts is inadmissible to show propensity but is admissible for other purposes such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Impeachment lets a party attack a witness's credibility through prior inconsistent statements, bias or interest, sensory or mental defects, contradiction, character for untruthfulness through reputation or opinion testimony, and certain prior convictions; convictions for crimes involving dishonesty or false statement are automatically admissible regardless of the punishment, while other felony convictions are subject to a balancing test; for a testifying criminal defendant specifically, such a conviction is admissible only if its probative value outweighs its prejudicial effect to that defendant, a stricter standard than ordinary Rule 403 balancing. Example: In a fraud trial, the prosecution offers evidence that the defendant ran an identical scheme two years earlier, not to show he is a dishonest person generally, but to prove the specific intent to defraud in the current scheme; this is admissible under the intent exception rather than as improper propensity evidence.
Hearsay, Its Exceptions, and Privileges
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted; if offered for some other purpose, such as its effect on the listener or as circumstantial evidence of the declarant's state of mind, it is not hearsay at all. The Federal Rules also define certain statements as non-hearsay by rule even though offered for their truth: a witness's own prior inconsistent statement given under oath at a prior proceeding, a prior consistent statement offered to rebut a charge of recent fabrication, a prior statement of identification, and statements by a party-opponent (admissions), including those made by the party's agent or co-conspirator. If a statement is hearsay, it is inadmissible unless it fits an exception. Key exceptions available regardless of the declarant's availability include present sense impressions, excited utterances, statements of then-existing mental or physical condition, statements made for medical diagnosis or treatment, recorded recollection, business records, and public records. Exceptions requiring the declarant be unavailable include former testimony (where the party against whom offered had a similar opportunity to cross-examine), dying declarations in homicide or civil cases, statements against interest, and statements of personal or family history. The Confrontation Clause independently bars testimonial hearsay against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination, regardless of whether a hearsay exception would otherwise apply. Separately, evidentiary privileges protect certain confidential relationships: attorney-client, spousal (both the testimonial privilege and the marital communications privilege), psychotherapist-patient, and clergy-communicant; note that federal common law recognizes no general physician-patient privilege, though most states have one by statute, and the details of privileges vary by jurisdiction. Example: A declarant shouts, moments after witnessing a collision, that the blue truck ran the red light; offered to prove the truck ran the light, this qualifies as an excited utterance because it was made under the stress of a startling event.
Key terms
- Malice aforethought
- — The mental state for common-law murder, satisfied by intent to kill, intent to cause serious bodily harm, depraved-heart recklessness, or intent to commit certain felonies.
- Felony murder
- — A killing, even unintended, that occurs during the commission of an inherently dangerous felony, generally limited to foreseeable deaths.
- Pinkerton doctrine
- — The rule making each conspirator liable for foreseeable crimes committed by co-conspirators in furtherance of the conspiracy.
- Exclusionary rule
- — The rule barring the prosecution's use of evidence obtained through an unconstitutional search or seizure, plus its derivative fruits.
- Miranda warnings
- — The required advisements of the right to remain silent and to counsel before custodial interrogation; violations bar the statement's use in the prosecution's case-in-chief.
- Fruit of the poisonous tree
- — Evidence derived from an initial constitutional violation, generally excluded absent independent source, inevitable discovery, or attenuation.
- Relevance (FRE 401/402)
- — Evidence is relevant if it has any tendency to make a fact of consequence more or less probable, and relevant evidence is generally admissible.
- Rule 403 balancing
- — The rule allowing exclusion of relevant evidence when its probative value is substantially outweighed by unfair prejudice, confusion, or delay.
- Hearsay
- — An out-of-court statement offered to prove the truth of the matter asserted, generally inadmissible unless it fits an exception or exclusion.
- Excited utterance
- — A hearsay exception for a statement relating to a startling event, made while the declarant was still under the stress of the excitement it caused.
- Statement against interest
- — A hearsay exception, requiring an unavailable declarant, for a statement so contrary to the declarant's interest that a reasonable person would not have made it unless true.
- Confrontation Clause
- — The Sixth Amendment guarantee barring admission of testimonial hearsay against a criminal defendant absent unavailability and prior cross-examination opportunity.
Exam tips
- Separate the mental state analysis from the act: match intent-to-kill, intent-to-injure, depraved-heart, and felony-murder theories precisely to the facts given, since MBE distractors often swap one theory for an adjacent one.
- On search and seizure questions, first ask whether a search occurred at all (reasonable expectation of privacy), then whether a warrant was required, then whether an exception applies; skipping straight to exceptions causes missed points.
- For hearsay questions, always ask what the statement is offered to prove before applying any exception; a statement offered for a non-truth purpose is not hearsay and needs no exception at all.
- Distinguish rules that apply regardless of declarant availability (present sense impression, excited utterance, business records) from those that require unavailability (former testimony, dying declaration, statement against interest).
- Remember Evidence is tested purely under the Federal Rules of Evidence on the MBE, even if your home state has adopted variations; do not import state-specific hearsay or privilege rules.