Criminal law and criminal procedure were actually two different courses for me in law school. I suspect they may have been for most of you as well. However, for MBE purposes, they are combined into a single testable topic. According to the NCBE, about half of questions will come from the “Constitutional Protections of Accused Persons” subsection below, with half of all other questions coming from the other subsections. Here is a comprehensive outline of MBE testable subjects provided by the NCBE, with the criminal law and procedure section outlined briefly below.
Murder is a big part of criminal law, and it gets its own subsection when it comes to testable material. Homicide covers intended killings, and the included elements of premeditation and deliberation, along with potential factors like provocation. It also covers the various types of unintended killings, including intent to injure, reckless and negligent killings, felony murder, and misdemeanor manslaughter. It’s worth noting that you’ll need to know all distinctions and tests for homicide (and any other crime).
II. Other Crimes
Other crimes encompasses the other big non-homicide crimes covered in criminal law. These include theft and receipt of stolen goods, robbery, burglary, assault and battery, rape (including statutory rape), kidnapping, arson, and the various possession offenses. As previously noted, all elements and jurisdictional distinctions may be relevant for all crimes.
III. Inchoate Crimes; Parties
Inchoate crimes are testable on the MBE, which includes attempts, conspiracy, and solicitation. This section also includes the various potential parties to a crime.
IV. General Principles
‘General Principles’ is a bit of a catchall for various terms, factors, and defenses applying to crimes. These include the distinction between acts and omissions as they relate to various crimes. Additionally, you’ll need to know the state of mind requirement for various crimes, including the required mental state, any considerations of strict liability, and the relevance of either mistakes of fact or mistakes of law. You’ll also need to know whether mental disorder or intoxication will have any bearing regarding responsibility of a crime.
General Principles also covers causation, justification and excuse for committing a crime, and considerations of jurisdiction.
V. Constitutional Protection of Accused Persons
As previously mentioned, this subsection can account for half of all questions in the criminal law and procedure area of the MBE. This includes constitutional requirements for arrests, and search and seizure. You’ll also need to know the constitutional considerations regarding confessions, and the privilege against self incrimination.
Additionally, lineups and other forms of identification will be relevant, as will be the right to counsel, the right (and elements of) a fair trial, and the process for a guilty plea. Lastly, you’ll also need to know about double jeopardy, prohibitions against cruel and unusual punishment, who has the burden of proof and persuasion in different instances, and appeal / error.
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