Criminal Law and Procedure (MBE) Long Outline

CRIMINAL LAW & PROCEDURE MASTER TREATISE OUTLINE (MBE)

Criminal Law & Procedure supplies roughly 25 scored MBE questions, split close to evenly between substantive criminal law and constitutional criminal procedure. The substantive side defaults to common law rules unless the question supplies a statute, but constantly tests the friction points among the common law, the Model Penal Code (MPC), and modern majority positions — this outline flags every major split. The procedure side is case-driven: the examiners test a known canon of Supreme Court decisions (Katz, Terry, Miranda, Gant, Crawford, Batson, Strickland), and each fact pattern is engineered to make one doctrine dispositive. Master the elements, the splits, and the case names, and this subject becomes one of the most predictable on the exam.

I. ESSENTIAL ELEMENTS OF CRIMES

A. Actus Reus — The Voluntary Act Requirement

Rule: Every crime requires a voluntary physical act (a bodily movement) or a qualifying omission. An act is involuntary — and cannot ground liability — if it is a reflex or convulsion, a movement during unconsciousness or sleep, conduct under hypnosis (MPC view), or a bodily movement that is not the product of the actor's volition (e.g., being physically pushed into another person). Mere thoughts, status, or bad intentions are never criminal; a statute punishing the status of addiction violates the Eighth Amendment (Robinson v. California), though punishing the act of public intoxication is permissible (Powell v. Texas).

Rule (omissions): Failure to act creates liability only when (1) there is a legal duty to act, (2) the defendant has knowledge of the facts giving rise to the duty, and (3) it is reasonably possible to perform the duty. Legal duties arise from five sources: (i) statute (e.g., duty to file a tax return); (ii) contract (lifeguard, nurse); (iii) status relationship (parent–child, spouse–spouse); (iv) voluntary assumption of care that secludes the victim from other rescuers; and (v) creation of the peril by the defendant. There is no general American duty to rescue a stranger.

MBE TIP: When a fact pattern shows a bystander watching someone drown, your reflex should be "no duty, no crime" — then scan the facts for one of the five duty triggers. An Olympic swimmer who watches a stranger's child drown commits no crime; the child's parent or babysitter in the same position commits criminal homicide if the requisite mens rea for some grade of homicide is present.

B. Mens Rea — Common Law Categories

Rule: The common law sorts crimes into four mental-state categories. (1) Specific intent crimes require an intent or purpose to bring about a specific result beyond the actus reus. The specific intent crimes are: solicitation, conspiracy, attempt, first-degree premeditated murder (where statutory), assault (attempted-battery type), larceny, embezzlement, false pretenses, robbery, burglary, and forgery — memorize this list, because only specific intent crimes are subject to the defenses of voluntary intoxication and unreasonable (honest but mistaken) mistake of fact. (2) Malice crimes — common law murder and arson — require reckless disregard of an obvious or high risk that the harmful result will occur; the specific-intent defenses do not apply. (3) General intent crimes (battery, rape, kidnapping, false imprisonment) require only awareness of acting in the proscribed way; juries may infer general intent from the doing of the act. (4) Strict liability crimes require no mens rea at all: the public welfare/regulatory offenses (selling liquor to minors, food and drug violations) and statutory rape. For strict liability offenses, mistake of fact — even a reasonable one — is no defense.

C. Mens Rea — MPC Categories

Rule (MPC § 2.02): The MPC abandons the common law labels in favor of four hierarchical mental states, defined element-by-element: (1) Purposely — the actor's conscious object is to engage in the conduct or cause the result. (2) Knowingly — the actor is aware that his conduct is of the required nature or that the result is practically certain to follow. Willful blindness (awareness of a high probability of the fact's existence plus deliberate avoidance of confirmation) satisfies knowledge. (3) Recklessly — the actor consciously disregards a substantial and unjustifiable risk, a gross deviation from the standard of conduct of a law-abiding person; this is a subjective awareness standard. (4) Negligently — the actor should have been aware of a substantial and unjustifiable risk; this is an objective standard requiring a gross deviation from the reasonable person's standard of care. If a statute is silent on mens rea, the MPC default is that recklessness suffices; proof of a higher mental state always satisfies a lower one.

MBE TIP: When a question gives you a statute using "purposely," "knowingly," or "recklessly," apply MPC definitions strictly. The recklessness/negligence line is the most tested distinction: recklessness requires the defendant actually perceived the risk; negligence asks only what he should have perceived.

D. Transferred Intent and Concurrence

Rule (transferred intent): When a defendant intends a harm against one victim but causes the same type of harm to another, the intent transfers to the actual victim. Transferred intent applies to homicide, battery, and arson — but not to attempt (the attempt is complete as to the intended victim). Classically, the defendant who shoots at A and kills B is guilty of two crimes: murder of B (transferred intent) and attempted murder of A. Intent does not transfer between different types of harm (intent to break a window does not transfer to a personal injury).

Rule (concurrence): The mens rea must exist at the time of and actuate the actus reus. EXAMPLE: A defendant who breaks into a cabin solely to escape a blizzard, and only after entering decides to steal the owner's rifle, is not guilty of common law burglary — the intent to commit a felony did not exist at the moment of breaking and entering.

E. Causation

Rule: Result crimes (chiefly homicide) require actual cause and proximate cause. Actual ("but-for") cause: the result would not have occurred when it did but for the act; where two independent sufficient causes concur (two simultaneous fatal shots), each is an actual cause under the substantial factor test, and an act that accelerates an inevitable death is still a but-for cause. Proximate cause requires that the result be a natural and probable consequence of the act, without a superseding intervening cause. Dependent (responsive) intervening causes — negligent medical treatment, the victim's escape attempt, infection — do not break the chain unless wholly abnormal; independent (coincidental) intervening causes break it unless foreseeable. Victim frailty never breaks the chain: the defendant takes the victim as he finds him (the "eggshell skull" rule).

Rule (year-and-a-day): At common law, a death occurring more than a year and a day after the defendant's act could not be murder. The overwhelming modern trend abolishes the rule (and abolition applied retroactively does not violate due process, Rogers v. Tennessee), but if an MBE question specifies the common law, apply it.

ESSAY WRITING TIP: On any homicide question, walk causation in two explicit steps — "but for D's act, V would not have died when he did" then "death was the natural and probable consequence because the intervening [medical negligence/escape attempt] was foreseeable." Examiners award points for naming both prongs even when causation is obvious.

F. Mistake of Fact and Mistake of Law

Rule (mistake of fact): Mistake of fact is a defense only when it negates the required mental state. For specific intent crimes, any honest mistake — reasonable or unreasonable — is a defense (an unreasonable but genuine belief that the umbrella you took was yours negates larcenous intent). For general intent and malice crimes, only a reasonable mistake is a defense. For strict liability crimes, mistake is never a defense (reasonable belief that the victim was over the age of consent does not defeat statutory rape under the majority rule; the MPC and a minority allow a reasonable-mistake defense where the age line is above ten).

Rule (mistake of law): Ignorance of the law is generally no excuse — even reasonable reliance on one's own reading of a statute or private counsel's advice. Exceptions: (1) the statute was not reasonably available; (2) reasonable reliance on an official interpretation (judicial decision, attorney general opinion) later held erroneous; (3) the mistake negates a required mental state (one who honestly believes property is legally his lacks intent to steal); (4) due process bars conviction for an unknown omission duty without reasonable notice (Lambert — narrow).

G. Vicarious and Corporate Liability

Rule: Vicarious liability punishes one person (typically an employer) for another's actus reus without personal fault; courts confine it to fine-only regulatory offenses — vicarious imprisonment raises due process problems. Corporate liability: at common law corporations could not commit crimes; under modern statutes a corporation is liable for offenses by agents acting within the scope of employment at least partly to benefit the corporation, or — the MPC's narrower view — where conduct is authorized or recklessly tolerated by a high managerial agent. Corporate conviction never immunizes the individual agent.

II. ACCOMPLICE LIABILITY

A. Parties to Crime — Common Law vs. Modern

Rule (common law): The common law divided parties into four categories: principal in the first degree (perpetrator of the actus reus, personally or through an innocent agent); principal in the second degree (aids or encourages while present, actually or constructively — the lookout); accessory before the fact (aids or encourages while absent); and accessory after the fact. At common law an accessory could not be convicted unless the principal was convicted first. Modern/majority rule: all parties before and during the crime are simply "accomplices," punishable to the same degree as the perpetrator and convictable even if the principal is acquitted, dead, or unidentified — so long as a crime was in fact committed. Accessory after the fact remains a separate, lesser offense, requiring (1) a completed felony, (2) knowledge of it, and (3) personal assistance to the felon to hinder apprehension, conviction, or punishment.

B. Mental State and Acts of Aid

Rule: An accomplice must (1) aid, abet, counsel, or encourage the principal (words suffice; mere presence — even approving — does not, absent a duty to act or prior agreement to be present as encouragement), and (2) act with dual intent: intent to assist and intent that the principal commit the offense. For crimes of recklessness or negligence, the majority/MPC view requires intent to assist the conduct plus the offense's recklessness or negligence. A merchant selling ordinary goods at ordinary prices with mere knowledge of the buyer's criminal purpose is generally not an accomplice; intent appears when the seller acquires a stake in the venture (inflated price, no legitimate use, grossly disproportionate volume).

MBE TIP: "Mere presence + knowledge" is the most common wrong-answer trap. The bar wants you to acquit the friend who tags along and silently watches. Conversely, the smallest act of encouragement — yelling "hit him again!" — completes accomplice liability.

C. Scope of Liability — Natural and Probable Consequences

Rule: An accomplice is liable for the crime he aided and, under the common law/majority view, for other crimes committed by the principal that were probable and foreseeable ("natural and probable consequences") of the criminal venture. EXAMPLE: One who aids an armed robbery is liable for murder when the principal foreseeably shoots the resisting clerk; he is not liable for the principal's unrelated, unforeseeable rape committed on the way home. The MPC rejects the natural-and-probable-consequences doctrine: the accomplice is liable only for crimes he intended to promote (though for result crimes, an accomplice with the requisite mental state as to the result can be liable).

D. Withdrawal and Exempt Parties

Rule (withdrawal): An accomplice avoids liability for the substantive crime only by withdrawing before the crime becomes unstoppable: one who encouraged must repudiate the encouragement in time to be heeded; one who provided assistance must neutralize the assistance or, failing that, notify police or otherwise act to prevent the crime. Withdrawal does not undo completed inchoate liability (conspiracy). Exempt parties: a member of the statute's protected class (the underage party to statutory rape) cannot be an accomplice to the crime against herself; nor can a party logically necessary to the crime whom the legislature left unpunished (the buyer under a seller-only narcotics statute).

ESSAY WRITING TIP: Analyze accomplice liability person-by-person and crime-by-crime, and close each actor with a withdrawal-timing paragraph if the facts show second thoughts ("his anonymous call came after the burglary began, so withdrawal was ineffective").

III. INCHOATE OFFENSES

A. Solicitation

Rule: Solicitation is asking, inciting, counseling, or commanding another to commit a crime, with the specific intent that the person solicited commit it. The offense is complete upon the asking — the solicitee need not agree or respond. If the solicitee agrees, solicitation merges into conspiracy; if the crime is attempted or completed, it merges into that offense (the solicitor becoming an accomplice). That the solicitee was an undercover officer is no defense. Common law allowed no withdrawal; the MPC permits renunciation if the solicitor completely and voluntarily renounces and prevents the crime.

B. Conspiracy

Rule (elements): Conspiracy is (1) an agreement between two or more persons, (2) intent to enter the agreement, and (3) intent to achieve the unlawful objective; the majority of states and federal law add (4) an overt act in furtherance — and any act, however trivial and lawful in itself (showing up at the rendezvous, buying a map), suffices. At common law no overt act was required; the agreement itself completed the crime. The agreement need not be express — a tacit, mutual understanding inferred from concerted conduct is enough.

Rule (plurality — bilateral vs. unilateral): The common law requires a bilateral agreement — two parties with genuine criminal intent — so if one of two "conspirators" is an undercover officer or feigning, neither is guilty; and acquittal of all other alleged co-conspirators in the same proceeding requires acquittal of the last. The MPC/modern unilateral approach asks only whether this defendant agreed — agreement with an undercover agent suffices. Wharton's Rule: where the substantive offense by definition requires two participants (adultery, bigamy, dueling), there is no conspiracy unless more parties than the crime requires participate (Iannelli). A member of the statute's protected class cannot be a conspirator (Gebardi).

Rule (no merger; Pinkerton): Conspiracy does not merge — the defendant may be convicted of both the conspiracy and the completed substantive crime. Under Pinkerton v. United States (majority rule), each conspirator is liable for co-conspirators' substantive crimes committed (1) in furtherance of the conspiracy, (2) within its scope, and (3) reasonably foreseeable; the MPC rejects Pinkerton, requiring ordinary accomplice liability. Scope: one agreement with multiple criminal objectives is one conspiracy; "chain" conspiracies are usually a single conspiracy among interdependent links, while "hub-and-spoke" arrangements without community of interest among the spokes are multiple conspiracies.

Rule (withdrawal vs. renunciation): At common law, withdrawal is never a defense to the conspiracy itself (complete upon agreement); effective withdrawal — an affirmative act notifying all co-conspirators in time to abandon, plus neutralizing any assistance given — cuts off only future Pinkerton liability and starts the limitations clock. The MPC alone recognizes renunciation as a defense: the defendant must voluntarily and completely renounce and thwart the conspiracy. Impossibility is no defense, and conspiracy liability survives even where the object crime is never committed.

MBE TIP: Conspiracy is the most-tested inchoate crime. Three recurring traps: (1) the undercover-agent fact pattern (common law: no conspiracy; MPC: conspiracy); (2) the trivial overt act (it counts); (3) the conspirator who withdraws and is then charged with the conspiracy itself (still guilty — withdrawal only stops future Pinkerton liability).

C. Attempt

Rule: Attempt requires (1) the specific intent to commit the target crime, and (2) an overt act beyond mere preparation. Because attempt is specific intent even when the completed crime is not, there is no attempted felony murder or attempted depraved-heart murder — attempted murder always requires intent to kill. On the act element, the traditional tests required dangerous proximity to success (proximity test) or unequivocal manifestation of criminal purpose (equivocality test); the MPC/modern majority require a "substantial step in a course of conduct planned to culminate in the crime," strongly corroborative of criminal purpose — lying in wait, reconnoitering, unlawful entry, possessing specially designed materials. The MPC test reaches conduct earlier than the proximity tests.

Rule (abandonment): At common law, abandonment is no defense once the attempt is complete (once conduct passes beyond preparation). The MPC allows the defense only for a complete and voluntary renunciation — not one motivated by increased risk of detection, police arrival, or a decision to postpone or switch victims.

Rule (impossibility): Factual impossibility is never a defense: where the facts, had they been as the defendant believed, would constitute a crime, he is guilty of attempt (shooting an already-dead body believing it alive; picking an empty pocket; receiving non-stolen goods believing them stolen). "True" legal impossibility is a defense: where the act the defendant intended to complete is simply not a crime, no criminal intent exists to punish (smuggling French lace believing it dutiable when it is not). Attempt merges into the completed crime — a defendant cannot be convicted of both attempt and the completed target offense; nor of both solicitation and attempt for the same conduct.

EXAMPLE: D, intending to kill V, mails V a box of chocolates laced with what D believes is arsenic but is actually powdered sugar. D is guilty of attempted murder — factual impossibility is no defense, because had the facts been as D believed, the completed crime would have occurred.

IV. HOMICIDE

A. Common Law Murder and the Four Malice States

Rule: Common law murder is the unlawful killing of a human being with malice aforethought. Malice exists in four alternative forms: (1) intent to kill — including the inference from use of a deadly weapon aimed at a vital part of the body; (2) intent to inflict great/serious bodily injury, death resulting; (3) depraved-heart murder — a killing from reckless indifference to an unjustifiably high risk to human life (firing into an occupied building, playing "Russian roulette," driving at high speed through a crowd); and (4) felony murder — a killing, even accidental, caused during the commission or attempted commission of a qualifying felony. "Aforethought" requires no actual premeditation; malice may form in an instant. Murder is reduced to voluntary manslaughter when adequate provocation, imperfect self-defense, or (in MPC states) extreme mental or emotional disturbance negates malice.

B. Felony Murder in Depth

Rule: Felony murder requires (1) a felony independent of the killing, (2) that is inherently dangerous (the common law/most-tested list: Burglary, Arson, Rape, Robbery, Kidnapping — "BARRK"), (3) guilt of the underlying felony (a complete defense to the felony defeats felony murder), (4) death that is a foreseeable result of the felony (most courts apply foreseeability generously), and (5) death caused during the commission or immediate flight from the felony — the felony-murder window closes when the felon reaches a place of temporary safety. The merger doctrine bars predicating felony murder on a felony that is an integral part of the homicide itself — aggravated assault and battery merge and cannot serve as the underlying felony (burglary with intent to assault is a contested edge; many states allow it because burglary has an independent felonious purpose, others merge it).

Rule (killings by third parties — agency vs. proximate cause): Under the majority "agency" theory, felony murder reaches only killings committed by a felon or his agent — when a police officer or the victim kills a bystander or a co-felon, the surviving felons are not guilty of felony murder. Under the minority "proximate cause" theory, felons are liable for any death proximately caused by the felony, whoever fires the shot. Even there, under the Redline limitation most courts deny felony murder for the justifiable killing of a co-felon by police or victims; but a felon who uses a victim as a human shield is liable when police kill the victim.

MBE TIP: When the getaway driver is charged after a police officer shoots the trigger-man inside the bank, the credited answer in a majority (agency) jurisdiction is "not guilty of felony murder, because the killing was not committed by a felon." Watch for the question to specify the jurisdiction's theory — if it doesn't, apply agency.

C. Statutory Degrees of Murder

Rule: Murder degrees are purely statutory — the common law had none, so apply degrees only when the question supplies a statute. Typical schemes make first-degree murder: (1) killings that are deliberate and premeditated — the defendant, in a cool and dispassionate state, actually reflected on the killing, even if only briefly (intoxication or other specific-intent defenses can negate premeditation, reducing to second degree); (2) enumerated felony murders (typically BARRK felonies); and sometimes (3) killings by poison, bomb, torture, or lying in wait. Second-degree murder is the default/residual category: depraved-heart killings, intent-to-injure killings, and any murder not raised to first degree.

D. Voluntary Manslaughter

Rule: Voluntary manslaughter is an intentional killing mitigated by adequate provocation ("heat of passion"). Four elements: (1) provocation that would arouse sudden and intense passion in an ordinary, reasonable person (objective); (2) the defendant was in fact provoked (subjective); (3) insufficient time for a reasonable person to cool (objective); and (4) the defendant did not in fact cool (subjective). Adequate at common law: a serious battery, a threat of deadly force, or discovering one's spouse in the act of adultery; words alone are never adequate at common law. A defendant who kills an innocent bystander by accidental deflection keeps the mitigation; one who deliberately kills a bystander in response to another's provocation does not. Imperfect self-defense: most states reduce murder to voluntary manslaughter where the defendant kills in an honest but unreasonable belief that deadly force was necessary, or was the initial aggressor.

Rule (MPC — extreme mental or emotional disturbance): The MPC replaces the rigid provocation categories with a killing committed under extreme mental or emotional disturbance (EMED) for which there is a reasonable explanation or excuse, judged from the viewpoint of a person in the actor's situation under the circumstances as he believed them to be. There is no rigid cooling-off bar, and words can qualify.

E. Involuntary Manslaughter

Rule: Involuntary manslaughter is an unintentional killing committed (1) with criminal negligence — a gross deviation from reasonable care creating a substantial danger of death or serious injury (mere tort negligence is insufficient; under the MPC, recklessness yields manslaughter and mere criminal negligence yields the lesser offense of negligent homicide); or (2) under the misdemeanor-manslaughter rule — a death caused during the commission of a malum in se misdemeanor or a felony that does not qualify for felony murder. EXAMPLE: A parent who leaves an infant in a hot car for hours while gambling, never adverting to the risk, commits involuntary manslaughter on a criminal-negligence theory (and reckless manslaughter under the MPC if she actually realized the danger).

ESSAY WRITING TIP: For every homicide essay, march down the ladder in order: first-degree murder (if a statute), common law murder with all four malice theories, felony murder separately with merger/agency analysis, voluntary manslaughter mitigation, involuntary manslaughter, then defenses. State why each rung does or does not fit before stepping down — graders allocate points rung by rung.

V. OTHER CRIMES AGAINST THE PERSON

A. Battery and Assault

Rule (battery): Battery is the unlawful application of force to the person of another resulting in bodily injury or an offensive touching. It is a general intent crime — intent to injure is unnecessary; criminal negligence or causing the contact through an instrumentality (setting a dog on someone, poisoning a drink) suffices. The force need not be applied directly. Consent is a defense where legally effective (sporting contests within the rules). Aggravated battery (a felony) typically involves a deadly weapon, serious bodily injury, or child/officer victims.

Rule (assault): Assault takes two distinct forms: (1) an attempted battery — a specific intent crime requiring intent to commit a battery plus a substantial step/proximate act (present ability is required in some states); and (2) intentional creation of reasonable apprehension in the victim of imminent bodily harm — the victim must actually perceive the threat, and words alone are generally insufficient without an overt menacing act. An unloaded-gun pointing is apprehension-type assault (the victim reasonably fears harm) but not attempted-battery assault if the defendant knew it was unloaded. If a battery is completed, assault merges into it.

MBE TIP: Identify which assault theory the facts support. A victim who never saw the attack coming defeats the apprehension theory but not the attempted-battery theory; a defendant who only intended to scare defeats the attempted-battery theory but not the apprehension theory.

B. Mayhem, Kidnapping, and False Imprisonment

Rule (mayhem): At common law, mayhem was the dismemberment or disablement of a bodily part (originally one useful in fighting); modern statutes typically fold permanent disfigurement and disablement into aggravated battery, but where "mayhem" survives it requires the intent to maim or disfigure.

Rule (false imprisonment): The unlawful confinement of a person without valid consent. Confinement requires that the victim's freedom of movement be constrained in all directions — blocking one route while alternatives remain is not confinement; the victim need not be aware of the confinement under the MPC formulation if harmed by it, though awareness is classically required. Consent obtained by coercion, threats, deception, or from one incompetent to consent is invalid. General intent crime (MPC: knowingly).

Rule (kidnapping): Modern kidnapping is the unlawful confinement of a person involving either (1) movement (asportation) of the victim, or (2) concealment in a secret place. The movement must be more than incidental to another offense in most states — dragging a robbery victim a few feet to the cash register is not kidnapping, but moving her to a back room or vehicle is. Aggravated kidnapping includes kidnapping for ransom, for the purpose of committing other crimes, or of a child (where taking a child, only the consent of the guardian matters).

C. Rape and Statutory Rape

Rule (rape): At common law, rape was unlawful sexual intercourse with a woman, not the perpetrator's wife, without her consent, accomplished by force, threat of force, or while the victim was incapable of consenting (unconscious, intoxicated to insensibility, mentally incompetent, or deceived about the nature of the act itself — fraud in the factum vitiates consent; fraud in the inducement does not). The slightest penetration completes the offense. Rape is general intent: an honest mistake about consent defends only if reasonable. Modern statutes are gender-neutral and abolish the marital exemption and resistance requirement.

Rule (statutory rape): Intercourse with a person under the statutory age of consent is a strict liability offense in the majority of states: a reasonable mistake as to age is no defense. The MPC and a minority allow a reasonable-mistake defense when the critical age is above ten. Consent of the underage victim is irrelevant — she is within the protected class and cannot be an accomplice.

VI. THEFT AND PROPERTY CRIMES

A. Larceny

Rule: Common law larceny is the (1) trespassory (2) taking (caption) and (3) carrying away (asportation) of (4) the tangible personal property (5) of another (6) with intent to permanently deprive formed at the time of the taking. Asportation: the slightest movement suffices if part of the carrying-away motion (rotating a barrel in place is not asportation; rolling it a foot is). Of another: larceny protects possession, not title — an owner can steal his own goods from a bailee; an employee with mere custody commits larceny by taking, one with true possession commits embezzlement; property received from a third party for the employer is in the employee's possession, so misappropriation is embezzlement. Intent to permanently deprive: intent to borrow and timely return defeats larceny, as does an honest claim of right — even an unreasonable one; but intent to return only on a contingency (reward, repurchase), to pledge the goods, or to expose them to substantial risk of loss qualifies.

Rule (continuing trespass): If the original taking was wrongful (without consent) but accompanied by an innocent state of mind (intent to borrow), the trespass continues, and a later-formed intent to keep the property completes larceny at that moment. If the original taking was entirely lawful, a later decision to steal is not larceny (it may be embezzlement if the taker had possession).

Rule (larceny by trick): Where the defendant obtains possession only (not title) by fraud or deception, the consent is vitiated and the taking is trespassory: larceny by trick. EXAMPLE: D "rents" V's car by lying that he needs it for a funeral, intending all along to keep it — larceny by trick, because V conveyed only possession.

Lost or mislaid property and misdelivery: A finder commits larceny if, when taking possession, he both intends to steal and knows the owner or has reasonable clues to identity; a recipient of misdelivered property (overpayment, wrong package) commits larceny if he realizes the mistake at the time of receipt and intends to keep it.

B. Embezzlement and False Pretenses

Rule (embezzlement): The fraudulent conversion of the personal property of another by one already in lawful possession of it (trustees, agents, bailees, high-level employees). The defendant misappropriates while possession is lawful — no taking from another's possession occurs, which is precisely what distinguishes it from larceny. Conversion requires a serious interference with the owner's rights (selling, consuming, heavily damaging, claiming as one's own); the embezzler need not benefit personally and need not carry anything away. Defenses: intent to restore the exact same property negates fraudulent intent (intent to restore equivalent money does not, under the prevailing view); a claim of right defeats embezzlement as it does larceny.

Rule (false pretenses): Obtaining title to the property of another by a knowingly false representation of a material past or present fact (not a false promise of future conduct at common law — though under the MPC and modern statutes a false promise made without intent to perform qualifies), with intent to defraud, where the victim is actually deceived and the misrepresentation is a cause of the transfer. The title/possession line is the whole ballgame: if the victim intends to convey ownership, the crime is false pretenses; if the victim intends to convey only possession, it is larceny by trick. When a victim hands over money expecting it to be applied to a specific purpose, courts often find only possession passed; when the victim sells goods or makes an outright payment induced by lies, title passes.

MBE TIP: The theft-crime question is usually a classification question. Ask three things in order: (1) Did D have lawful possession before forming intent? → embezzlement. (2) Did D obtain the property by deception? → did title pass (false pretenses) or only possession (larceny by trick)? (3) Otherwise → larceny, and check when intent was formed (continuing trespass).

C. Robbery and Extortion

Rule (robbery): Robbery is larceny + assault: a taking of personal property from the victim's person or presence by force or intimidation (threats of immediate death or serious injury to the victim, a family member, or a person present), with intent to permanently deprive. "Presence" is broad — anywhere within the victim's area of control. The force must exceed a pickpocket's incidental touching, but force used to retain property or overcome resistance (yanking a clutched chain) converts larceny to robbery. A threat of future harm is extortion, not robbery. Larceny and assault merge into robbery.

Rule (extortion/blackmail): Common law extortion was the corrupt collection of an unlawful fee by an officer under color of office; modern statutory extortion (blackmail) is obtaining property by threats of future harm — violence, exposure of secrets, accusation of crime. In most statutes the crime is complete upon the making of the threat with intent to obtain property; in others property must actually be obtained. The property need not be taken from the victim's person or presence — another line from robbery.

D. Burglary

Rule (common law): Burglary is the (1) breaking — creating or enlarging an opening by even minimal force, fraud (constructive breaking), or intimidation; walking through a wide-open door is not a breaking, though opening an interior door to reach the target room is; (2) entering — any body part, or an instrument inserted to commit the felony (not merely to effect the break), crossing the threshold; (3) of the dwelling house (4) of another — occupancy, not ownership, controls, so a landlord can burgle his tenant's home; (5) at nighttime; (6) with intent to commit a felony inside existing at entry (the felony need never be completed; later-formed intent does not relate back). Modern statutes eliminate the breaking element (unlawful entry or remaining suffices), cover any structure and often vehicles, abolish the nighttime element, and frequently expand the entry-intent to any crime or theft. Apply the common law unless the question gives a statute.

EXAMPLE: At noon, D pushes open V's ajar apartment door intending to beat V (a felony); finding V absent, he takes V's watch and leaves. Common law burglary fails on the nighttime element, and the late-formed theft intent cannot supply the entry intent — D commits only larceny. Under a modern "unlawful entry with intent to commit a crime therein" statute, D is guilty of burglary based on the assault intent at entry.

E. Arson

Rule (common law): Arson is the malicious burning of the dwelling house of another. Malice requires intent or reckless disregard of an obvious risk of burning — no specific intent needed, but accidental and merely negligent fires do not qualify. Burning requires actual ignition and at least charring of the structure itself (fiber damage); mere blackening by smoke, scorching, or burning only the contents/furniture is insufficient — and burning one's own dwelling (houseburning) was a separate misdemeanor, not arson, even to defraud an insurer. Modern statutes extend arson to commercial structures, vehicles, the defendant's own property (especially with intent to defraud insurers), and damage by explosion.

F. Receiving Stolen Property, Forgery, and Malicious Mischief

Rule (receiving stolen property): (1) Receiving possession or control of personal property (physical possession unnecessary — arranging a sale or designating a drop-off suffices), (2) known to be stolen at the time of receipt, (3) with intent to permanently deprive the owner. Crucial trap: the property must actually be stolen at the moment of receipt — if police have recovered the goods and use them in a controlled delivery, they have lost their stolen character, and the defendant can be convicted only of attempted receipt (factual impossibility being no defense to attempt).

Rule (forgery): (1) Making or materially altering (2) a writing with apparent legal significance (checks, deeds — not paintings) (3) so that it is false — it purports to be what it is not (a fake instrument), not merely a genuine document containing lies — (4) with intent to defraud; no one need actually be defrauded. Uttering is the separate offense of offering a known-forged instrument as genuine with intent to defraud. Authorized signing, or signing one's own name to a lying document, is not forgery; procuring a signature by misrepresenting the document's contents (fraud in the factum) is.

Rule (malicious mischief): The malicious destruction of or damage to the property of another — malice requiring that the damage be intended or contemplated (or, in many courts, recklessly risked), but no ill will toward the owner is necessary.

VII. DEFENSES

A. Insanity — The Four Tests, and Competency Distinguished

Rule: Four formulations, all keyed to a mental disease or defect at the time of the offense: (1) M'Naghten (traditional majority) — the defendant did not know the nature and quality of his act or did not know it was wrong; purely cognitive. (2) Irresistible impulse — the defendant was unable to control his actions or conform his conduct to law, even knowing it was wrong; a volitional supplement. (3) Durham (New Hampshire only) — the crime was the product of mental disease; the broadest test. (4) MPC § 4.01 — the defendant lacked substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to law — blending both prongs and requiring only "substantial," not total, incapacity. All defendants are presumed sane; jurisdictions split on burdens — many put the burden on the defendant (preponderance; federal: clear and convincing), others make the prosecution prove sanity beyond a reasonable doubt once raised. A state may abolish the defense so long as mental illness can negate mens rea (Kahler v. Kansas).

Rule (competency): Insanity (status at the time of the crime; a complete defense) is distinct from incompetency to stand trial (status at trial): due process bars trying a defendant who lacks (1) a rational and factual understanding of the proceedings or (2) the ability to consult with counsel with a reasonable degree of rational understanding (Dusky). Incompetency suspends, not bars, prosecution, and cannot justify indefinite commitment (Jackson v. Indiana); the defendant may bear the burden by a preponderance, but not by clear and convincing evidence (Medina; Cooper).

B. Intoxication and Infancy

Rule (voluntary intoxication): Self-induced intoxication is a defense only to specific intent crimes, and only when it actually prevents formation of the required intent; it is no defense to general intent, malice, recklessness, or strict liability crimes — so it can negate premeditation (reducing first- to second-degree murder) and intent to kill, but never reduces murder to manslaughter and never defeats depraved-heart murder, arson, rape, or battery. "Liquid courage" intoxication is no defense at all, and states may bar the defense entirely (Montana v. Egelhoff). MPC parallel: intoxication negates purpose or knowledge if in fact absent but cannot negate recklessness.

Rule (involuntary intoxication): Intoxication that is coerced, innocently mistaken (spiked drink), medically prescribed and unexpected in effect, or pathological is treated as a mental illness: it is a defense to all crimes if it renders the defendant insane under the jurisdiction's insanity test.

Rule (infancy): At common law: under 7, conclusive presumption of incapacity; 7–13, rebuttable presumption of incapacity (rebutted by proof the child knew the wrongfulness); 14+, treated as an adult. Modern statutes typically channel youths into juvenile court and set minimum ages for criminal prosecution.

C. Self-Defense and Defense of Others/Property

Rule (non-deadly force): A person without fault may use non-deadly force whenever he reasonably believes it is necessary to protect against the imminent use of unlawful force; there is never a duty to retreat before using non-deadly force.

Rule (deadly force): Deadly force is justified only when the defender (1) is without fault, (2) is confronted with unlawful force, and (3) reasonably believes he faces imminent death or great bodily harm. Retreat: the majority/stand-your-ground rule imposes no duty to retreat; a substantial minority (and the MPC) require retreat before deadly force when it can be made in complete safety — but never from one's own home (the "castle doctrine"), and not by victims of robbery or rape or by police. Initial aggressor: one who starts the fight may regain the right of self-defense only by (a) effective withdrawal communicated to the adversary, or (b) the victim's sudden escalation of a minor fight into deadly force without giving the aggressor a chance to withdraw. An honest but unreasonable belief in the need for deadly force is no justification, but in most states yields imperfect self-defense, reducing murder to voluntary manslaughter (the MPC reaches a similar result by matching the defendant's negligence or recklessness about the belief to crimes of negligence or recklessness).

Rule (defense of others): A defender may use force to protect a third person whenever she reasonably believes the third person would be justified — the majority/MPC view protects the reasonably mistaken rescuer; the older minority "alter ego" rule puts the rescuer in the shoes of the person aided and makes the rescuer liable if that person had no right of self-defense.

Rule (defense of property): Deadly force may never be used solely to defend property — spring guns and mechanical deadly devices are unlawful per se. Non-deadly force may prevent or terminate an unlawful entry or taking when reasonably necessary, generally after a request to desist; force to regain property is allowed only in fresh pursuit. Within the home, deadly force is justified only where the occupant reasonably believes the intruder intends a violent felony or serious harm to an occupant. Crime prevention: deadly force only to prevent a felony risking human life; arrest: deadly force only against a fleeing felon posing a threat of death or serious harm (Tennessee v. Garner); private persons arresting act at their peril — the crime must actually have been committed.

D. Duress, Necessity, Entrapment, and Consent

Rule (duress): A defense where the defendant committed the crime because of a threat by another human of imminent death or serious bodily injury to himself or a family member (modern courts: any person), which a person of reasonable firmness would have been unable to resist. Duress is never a defense to intentional murder (common law; the MPC has no homicide exception), though it may defeat the underlying felony and thereby felony murder. One who recklessly places himself in the coercive situation forfeits the defense (MPC).

Rule (necessity): The "choice of evils" defense: criminal conduct is justified when the defendant reasonably believed it necessary to avoid an imminent, greater harm — traditionally limited to natural/physical forces (the human-pressure cases being duress), with an objective test (good faith alone is insufficient). Limits: not available if the defendant created the peril; killing an innocent person is never justified by necessity (Dudley & Stephens); economic necessity does not justify theft. The MPC § 3.02 generalizes the defense to any conduct the actor believes necessary to avoid a greater evil, without the natural-forces limit.

Rule (entrapment): Under the federal/majority subjective test, entrapment exists when (1) the criminal design originated with the government, and (2) the defendant was not predisposed to commit the crime before contact (Jacobson v. United States — predisposition must predate the government's solicitation). Merely providing the opportunity to a willing criminal is not entrapment, which is why the defense almost never works on the MBE; predisposition evidence opens the defendant's character. A private inducer cannot entrap. The minority/MPC objective test asks whether police methods would induce a law-abiding person to commit the crime, judged without regard to this defendant's predisposition.

Rule (consent): Consent is a defense only where it negates an element (rape, kidnapping, larceny) or, for bodily-injury crimes, where the injury risked is not serious or occurs in a lawful athletic contest; consent must be voluntary, by one with legal capacity, and unprocured by fraud in the factum.

MBE TIP: Defense questions reward elimination by category. Justifications (self-defense, defense of others, necessity, crime prevention) say the act was right; excuses (insanity, duress, infancy, involuntary intoxication) say the actor isn't blameworthy. The two highest-yield traps: voluntary intoxication offered against a general-intent or malice crime (fails), and duress offered against intentional murder (fails at common law).

VIII. THE FOURTH AMENDMENT — SEARCHES AND SEIZURES

A. Government Action, Standing, and What Counts as a Search

Rule (state action): The Fourth Amendment constrains only government conduct — police, public officials, and private persons acting at the direction of or in concert with the government. A purely private search (the suspicious airline employee who opens a package) implicates no constitutional right, and police may replicate the private search to the extent of the private intrusion.

Rule (search defined): A "search" occurs when the government (1) violates a reasonable expectation of privacy — a subjective expectation that society recognizes as reasonable (Katz v. United States, the bugged phone booth) — or (2) physically trespasses on persons, houses, papers, or effects to obtain information (United States v. Jones, the GPS tracker attached to a car; Florida v. Jardines, the drug dog brought onto the front porch). Both tests survive; satisfy either and the Fourth Amendment applies.

Rule (no expectation of privacy): No protected interest exists in what is knowingly exposed to the public: voice and handwriting exemplars, bank records and dialed numbers under the third-party doctrine (Miller; Smith v. Maryland), curbside garbage (Greenwood), a dog sniff of luggage or a car in a public place (Place; Caballes — though prolonging a traffic stop to conduct the sniff is an unlawful seizure, Rodriguez), open fields beyond the curtilage even if fenced and posted (Oliver), and anything visible from lawful aerial vantage points (Ciraolo; Riley). Curtilage — judged by proximity, enclosure, use, and shielding (Dunn factors) — is protected like the home, and officers cannot enter it even to inspect a vehicle (Collins v. Virginia). Sense-enhancing technology not in general public use aimed at the home is a search: thermal imaging (Kyllo). And Carpenter carves back the third-party doctrine: accessing seven days or more of historical cell-site location data is a search requiring a warrant.

Rule (standing): Fourth Amendment rights are personal — a defendant may suppress evidence only if his own reasonable expectation of privacy (or property interest) was invaded. An overnight guest has standing in the host's home (Minnesota v. Olson); a brief commercial visitor (bagging cocaine for a couple of hours) does not (Carter). Passengers in a car lack standing to challenge a search of the car (no possessory interest), but every occupant is seized by a traffic stop and may challenge the stop itself (Brendlin). A driver in lawful possession of a rental car not listed on the agreement has standing (Byrd). Ownership of seized contraband alone confers no standing to challenge the place searched.

MBE TIP: Standing is the screen the examiners run before any merits issue. When the question asks whether the passenger can suppress drugs found under the driver's seat, the answer turns on standing, not on whether the search was valid. Always ask "whose privacy?" before "was it reasonable?"

B. Seizures of the Person — Arrests, Terry Stops, and Checkpoints

Rule (seizure): A person is seized when, by means of physical force or show of authority, a reasonable person would not feel free to leave (or, on a bus, to decline the encounter — Drayton); a show of authority alone seizes no one until the suspect submits or is physically touched (Hodari D.).

Rule (arrest): An arrest requires probable cause — trustworthy facts sufficient for a reasonable person to believe the suspect has committed or is committing a crime. No warrant is needed to arrest in public (Watson; Atwater — custodial arrest even for a fine-only offense is constitutional), but a warrant (or consent/exigency) is required to arrest a suspect inside his own home (Payton v. New York), and an arrest warrant never justifies entry into a third party's home — that takes a search warrant (Steagald). Informant tips are judged by the totality of the circumstances (Illinois v. Gates); police corroboration of predicted details can validate an anonymous tip.

Rule (Terry stops and frisks): Under Terry v. Ohio, an officer may briefly detain a person upon reasonable suspicion — articulable facts, more than a hunch, less than probable cause — that criminal activity is afoot, and may frisk (patdown of outer clothing) upon separate reasonable suspicion that the person is armed and dangerous. The frisk is for weapons only; contraband felt during the patdown is seizable only if its identity is immediately apparent without manipulation ("plain feel," Dickerson). Reasonable suspicion can rest on unprovoked flight in a high-crime area (Wardlow) and on reliable anonymous tips (Navarette; contrast Florida v. J.L. — a bare anonymous "man with a gun" tip is insufficient). The stop may not be prolonged beyond its purpose absent new suspicion, and a reasonable mistake of law can still support it (Heien).

Rule (traffic stops and checkpoints): A traffic stop requires reasonable suspicion of a violation; the officer's subjective motive is irrelevant (pretextual stops are valid, Whren). During a lawful stop, the officer may order the driver and passengers out (Mimms; Wilson), frisk occupants on reasonable suspicion they are armed, and sweep the passenger compartment for weapons on the same showing (Michigan v. Long). Suspicionless checkpoints are valid for sobriety (Sitz), border/immigration (Martinez-Fuerte), and information about a specific recent crime (Lidster) — but not for general crime control/drug interdiction (Edmond). Cars must be stopped by a neutral, articulable standard.

C. The Warrant — Requirements and Execution

Rule: A valid search warrant requires (1) probable cause in a sworn affidavit, (2) particularity as to the place to be searched and items to be seized, and (3) a neutral and detached magistrate (a state attorney general or a magistrate paid per warrant fails). A facially valid warrant falls if, at a Franks hearing, the defendant shows the affiant intentionally or recklessly included a false statement material to probable cause. Execution: officers must knock and announce and wait a reasonable time before forcible entry unless announcement would be dangerous, futile, or investigation-defeating — but a knock-and-announce violation does not trigger the exclusionary rule (Hudson v. Michigan). Officers may detain occupants found on the premises (Summers) — not occupants detained away from the scene (Bailey) — and may not search unnamed persons merely present (Ybarra).

D. Exceptions to the Warrant Requirement

Rule (search incident to lawful arrest): Contemporaneous with a lawful custodial arrest, police may search the arrestee's person and the area within his immediate control ("wingspan," Chimel), plus a protective sweep of immediately adjoining spaces (beyond that, only on reasonable suspicion of dangerous confederates — Buie). For vehicles, Arizona v. Gant permits a passenger-compartment search incident to arrest only if (1) the arrestee is unsecured and within reaching distance, or (2) it is reasonable to believe the vehicle contains evidence of the offense of arrest — so a search after a suspended-license arrest, with the arrestee handcuffed in the squad car, is invalid. Cell phone contents require a warrant (Riley v. California); searches incident to mere citation are invalid (Knowles).

Rule (automobile exception): With probable cause to believe a vehicle contains contraband or evidence, police may search it without a warrant — including the trunk and any container, the driver's or a passenger's, that could hold the object of the search (Carroll; Acevedo; Houghton); the search may even occur later at the stationhouse. Probable cause limited to a container recently placed in the car reaches that container only, and the exception never authorizes entry into the home or curtilage to reach the vehicle (Collins).

Rule (plain view): Police may seize an item without a warrant when (1) lawfully positioned to view it, (2) with lawful access to it, and (3) its incriminating character is immediately apparent — probable cause without further inspection (moving stereo equipment to read serial numbers is a separate search, Hicks). Inadvertence is not required (Horton).

Rule (consent): A warrantless search is valid if a person with actual or apparent authority (Rodriguez) voluntarily consents under the totality; police need not warn of the right to refuse (Schneckloth), but falsely claiming a warrant vitiates consent (Bumper). The search is limited to the scope of consent, judged objectively (consent to search a car for drugs reaches containers that could hold drugs — Jimeno). Co-occupants: any occupant with common authority may consent to shared areas, but a physically present co-occupant's express refusal trumps (Georgia v. Randolph); once the objector is lawfully removed, the remaining occupant's consent suffices (Fernandez). Landlords and hotel clerks cannot consent for tenants or guests (Stoner); parents generally can for a child's room.

Rule (exigent circumstances): No warrant is needed when (1) in hot pursuit of a fleeing felon, police enter premises and may seize evidence in plain view (Hayden; pursuit of a fleeing misdemeanant justifies home entry only case-by-case, Lange); (2) evidence is evanescent or faces imminent destruction (police may not create the exigency by violating the Fourth Amendment, Kentucky v. King; dissipation of blood alcohol is not a per se exigency for warrantless blood draws, McNeely — breath tests are valid incident to DUI arrest, blood tests are not, Birchfield); or (3) emergency aid — objectively reasonable belief someone inside is injured or threatened (Brigham City). Community caretaking does not justify warrantless home entries (Caniglia v. Strom).

Rule (inventory and special needs): Inventory searches of impounded vehicles and arrestees' belongings at booking are valid if conducted under standardized procedures in good faith, not as an investigative pretext (Bertine; Wells). Special needs beyond ordinary law enforcement justify suspicionless searches: post-accident drug testing of railroad employees (Skinner), customs agents, student athletes and extracurricular participants (Vernonia; Earls) — but not candidates for office (Chandler) or obstetric patients whose results go to police (Ferguson). School officials may search students on reasonable suspicion, with measures not excessively intrusive (T.L.O.; strip search for ibuprofen excessive, Safford). Probationers' and parolees' homes are searchable on reduced or no suspicion (Knights; Samson); closely regulated businesses face warrantless administrative inspection; routine border searches need no suspicion; DNA cheek swabs on arrest for serious offenses are valid booking procedure (Maryland v. King).

EXAMPLE: Police arrest D on a parking-ticket warrant as he exits his car, handcuff him in the cruiser, then search the passenger compartment and find a pistol. Under Gant, the search is invalid: D was secured and out of reach, and no evidence of unpaid tickets could be in the car. The same search is valid if the arrest were for drug dealing, or if officers had probable cause the car contained contraband (automobile exception).

E. The Exclusionary Rule and Its Limits

Rule: Evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments is generally inadmissible in the prosecution's case-in-chief (Mapp v. Ohio applied the rule to the states), together with the fruit of the poisonous tree — secondary evidence derived from the violation (Wong Sun). The rule is a judge-made deterrent, not a personal right, so it yields when deterrence benefits do not outweigh costs.

Rule (the three causal escapes): Tainted derivative evidence is admissible if the government shows (1) an independent source — the evidence was in fact obtained through a lawful route genuinely independent of the illegality (Murray); (2) inevitable discovery — the evidence would inevitably have been found by lawful means, such as an ongoing search-party grid (Nix v. Williams); or (3) attenuation — the connection between the violation and the evidence is so weakened by time, intervening events, and the flagrancy of the misconduct that the taint dissipates (Brown v. Illinois factors); the discovery of a valid pre-existing arrest warrant attenuates the taint of an unlawful stop (Utah v. Strieff), and a suspect's voluntary confession days later or live-witness testimony are classic attenuating events.

Rule (good faith and other limits): Under United States v. Leon, exclusion does not apply to evidence obtained in objectively reasonable reliance on a facially valid warrant later held defective — unless the affidavit was "bare bones," the warrant facially lacked particularity, the magistrate abandoned neutrality, or the affiant lied or misled. Good faith extends to reliance on statutes later invalidated (Krull), clerical/database errors absent systemic recklessness (Evans; Herring), and binding precedent later overruled (Davis). Further limits: illegally obtained evidence may impeach the defendant's own testimony (Havens — but not other defense witnesses, James v. Illinois); the rule is inapplicable in grand jury (Calandra), civil, parole-revocation, and sentencing proceedings; knock-and-announce violations never trigger it (Hudson); and an illegal arrest alone does not bar trial (Frisbie v. Collins) — only its evidentiary fruits are suppressible. Miranda fruits: physical fruits of a voluntary but unwarned statement are admissible (Patane), as is a second, warned confession absent a deliberate two-step strategy (Elstad; Seibert). On appeal, erroneous admission is reviewed for harmless error beyond a reasonable doubt (Chapman).

MBE TIP: When you spot an illegal search, do not stop — run the four-step suppression gauntlet: standing? → exception to the warrant requirement? → good faith? → independent source/inevitable discovery/attenuation? The credited answer frequently admits the evidence despite genuine police illegality.

IX. THE FIFTH AMENDMENT — CONFESSIONS, IMMUNITY, AND DOUBLE JEOPARDY

A. Voluntariness — The Due Process Baseline

Rule: Independent of Miranda, the Due Process Clause bars any involuntary confession — one extracted by official coercion (violence, credible threats, extreme psychological pressure) that overbears the suspect's will, judged by the totality of the circumstances (age, education, mental state, conditions of interrogation). Government coercion is essential: a confession prompted by the defendant's psychosis or private pressure alone is not "involuntary" (Colorado v. Connelly). An involuntary confession is inadmissible for all purposes — including impeachment — though its admission can be harmless error (Fulminante).

B. Miranda in Depth

Rule: Under Miranda v. Arizona — a constitutional rule that Congress cannot override (Dickerson) — statements obtained through custodial interrogation are inadmissible in the case-in-chief unless police gave the familiar warnings (right to remain silent; statements usable against him; right to counsel; appointed counsel if indigent — no precise incantation required, Duckworth) and obtained a valid waiver.

Rule (custody): Custody = formal arrest or restraint of the degree associated with formal arrest, judged objectively; a child's age is relevant if known or apparent (J.D.B.). Not custody: ordinary traffic stops (Berkemer), voluntary stationhouse visits (Mathiason), Terry stops generally, probation interviews; imprisonment on another offense is not automatically custody (Howes v. Fields).

Rule (interrogation): Interrogation = express questioning or its functional equivalent — words or actions police should know are reasonably likely to elicit an incriminating response (Rhode Island v. Innis). Not interrogation: routine booking questions, spontaneous/volunteered statements, and statements to an undercover agent or jailhouse plant the suspect doesn't know is police — no coercive atmosphere, no Miranda problem (Illinois v. Perkins; though post-charge deliberate elicitation by a government agent violates the Sixth Amendment, Massiah).

Rule (invocation): Invocations must be unambiguous: "maybe I should talk to a lawyer" is insufficient (Davis), and silence, however prolonged, does not invoke the right to silence — the suspect must say so (Berghuis v. Thompkins). Silence invoked (Mosley): police must scrupulously honor it — cease immediately, but may re-approach after a significant time, fresh warnings, and (in Mosley) a different crime. Counsel invoked (Edwards): all interrogation on any offense must cease, and police may not re-approach unless counsel is present, the suspect himself initiates, or there is a 14-day break in custody (Maryland v. Shatzer). The Miranda counsel right is not offense-specific — unlike the Sixth Amendment right — and cannot be invoked anticipatorily.

Rule (waiver): Waiver must be knowing, intelligent, and voluntary — but it may be implied: warnings given, comprehension shown, and an uncoerced statement made constitute waiver (Berghuis). Police need not tell the suspect a lawyer is trying to reach him (Moran v. Burbine) or the subjects of questioning (Spring). The prosecution bears the burden by a preponderance.

Rule (exceptions and fruits): The public safety exception (New York v. Quarles) admits unwarned custodial answers to questions reasonably prompted by an immediate public-safety threat ("where's the gun?"). Miranda-violative statements — inadmissible in the case-in-chief — may impeach the testifying defendant (Harris); post-warning silence may never be used (Doyle), but pre-arrest, pre-Miranda silence may impeach (Jenkins; Salinas). Fruits: physical fruits of a voluntary unwarned statement are admissible (Patane); a later, properly warned confession is admissible if the first statement was voluntary (Oregon v. Elstad) — unless police used a deliberate two-step "question first, warn later" strategy, which excludes the post-warning statement absent curative measures (Missouri v. Seibert).

MBE TIP: Build a two-track habit. Track one (Miranda/Fifth): custody + interrogation, not offense-specific, undercover agents exempt. Track two (Sixth/Massiah): attaches at formal charge, offense-specific, undercover deliberate elicitation violates it. The same jailhouse-informant facts produce opposite answers depending on whether the defendant has been formally charged.

C. The Privilege Against Self-Incrimination and Immunity

Rule: The privilege protects only testimonial or communicative evidence compelled from a natural person — not physical evidence (blood, exemplars, lineup appearance — Schmerber), not corporate or partnership records (collective entities have no privilege), and not pre-existing voluntary documents (though the act of production can be testimonial). It may be asserted in any proceeding where answers might furnish a link in a chain of incrimination; a criminal defendant may refuse to take the stand altogether, and the prosecutor may not comment on that silence (Griffin v. California). Immunity: the government may compel testimony by conferring use and derivative-use immunity — coextensive with the privilege (Kastigar; transactional immunity is broader but not required); immunized testimony cannot even impeach, and a later prosecution must prove an independent source for all its evidence.

D. Double Jeopardy

Rule (attachment): Jeopardy attaches in a jury trial when the jury is sworn, in a bench trial when the first witness is sworn, and on a guilty plea when the court accepts it; it does not attach in civil proceedings (except juvenile adjudications) or at preliminary hearings or grand jury proceedings.

Rule (same offense — Blockburger): Two statutory offenses are the "same offense" unless each requires proof of an element the other does not (Blockburger). Lesser and greater included offenses are the same offense: conviction or acquittal of either bars trial for the other — with two exceptions: a later prosecution for the greater offense is allowed when the events completing it (e.g., the victim's death) had not yet occurred at the first trial, and when the defendant procured the separate trials. Cumulative punishments at a single trial for Blockburger-same offenses are permissible if the legislature clearly intended them (Missouri v. Hunter). Conspiracy and its object crime are not the same offense.

Rule (dual sovereignty): Separate sovereigns may each prosecute the same conduct: state and federal governments, and two different states, are separate sovereigns (Gamble reaffirmed the doctrine); a state and its municipalities are one sovereign, as are a state and its agencies.

Rule (mistrial and retrial): Retrial is permitted after (1) a hung jury; (2) a mistrial declared for manifest necessity or on the defendant's motion (unless the prosecutor intended to goad the motion — Oregon v. Kennedy); (3) a successful defense appeal — except reversal for insufficiency of the evidence, which is an acquittal (Burks); and (4) the defendant's breach of a plea bargain. On retrial after appeal, the defendant may not be tried for a greater offense than convicted of (implied acquittal). An acquittal is absolutely final — no government appeal, however egregious the legal error (the government may appeal only rulings whose reversal would not require a new trial).

Rule (collateral estoppel): Under Ashe v. Swenson, an issue of ultimate fact necessarily decided by an acquittal cannot be relitigated against the same defendant by the same sovereign (acquittal of robbing victim #1 on a sole-identity defense bars trial for robbing victim #2 in the same holdup).

X. THE SIXTH AMENDMENT — COUNSEL, SPEEDY TRIAL, CONFRONTATION, AND JURY

A. Right to Counsel — Attachment, Massiah, and the Miranda Comparison

Rule: The Sixth Amendment right to counsel attaches at the initiation of adversary judicial proceedings — formal charge, indictment, information, arraignment, or initial appearance (Rothgery) — and applies at all critical stages: post-charge interrogation and lineups, preliminary hearings, plea negotiations and the plea, trial, and sentencing. It does not apply pre-charge (investigative lineups, Kirby), to photo arrays ever (Ash), to exemplars, or to discretionary appeals and habeas. An indigent defendant gets appointed counsel wherever imprisonment is actually imposed, including suspended sentences (Gideon; Argersinger; Shelton), and on a first appeal as of right (Douglas) but not discretionary review (Ross v. Moffitt).

Rule (Massiah deliberate elicitation): Once the right attaches, the government may not deliberately elicit incriminating statements about the charged offense outside counsel's presence — including through undercover informants who actively engage the defendant (Massiah; Henry); a purely passive listening post does not violate the rule (Kuhlmann). The right is offense-specific — it does not bar questioning about different, uncharged crimes, "offense" measured by Blockburger (McNeil; Cobb). A represented defendant may still validly waive and answer police-initiated questioning after Miranda warnings (Montejo). Sixth Amendment-violative statements are excluded from the case-in-chief but usable for impeachment (Ventris).

Rule (Strickland ineffective assistance): The defendant must prove (1) deficient performance — below an objective standard of reasonableness, with a strong presumption of sound strategy — and (2) prejudice — a reasonable probability that, but for the errors, the result would have been different (Strickland v. Washington). Prejudice is presumed only for complete denial of counsel at a critical stage, total failure to subject the case to adversarial testing, or actual conflicts of interest adversely affecting performance (Cronic; Cuyler). In the plea context, prejudice means a reasonable probability the defendant would have gone to trial (Hill) or accepted a lapsed favorable offer (Lafler; Frye); failure to warn a noncitizen of clear deportation consequences is deficient (Padilla); failure to file a requested notice of appeal is per se prejudicial.

Rule (self-representation): A defendant may proceed pro se upon a knowing, intelligent, and voluntary waiver of counsel (waiver competence equals trial competence, Godinez), though the state may insist on counsel for one competent to stand trial yet too mentally ill to conduct his own defense (Edwards). Skill is not required; denial of the right is structural error (Faretta). There is no self-representation right on appeal (Martinez); standby counsel over objection is permissible if the defendant retains control (McKaskle).

B. Speedy Trial

Rule: Speedy-trial claims are governed by the four-factor balancing test of Barker v. Wingo: (1) length of delay (a year is presumptively prejudicial, triggering the inquiry); (2) reason (deliberate delay weighs heavily against the state; negligence less so; appointed counsel's delay is attributed to the defendant, Brillon); (3) the defendant's assertion of the right; and (4) prejudice (above all, impairment of the defense — though 8½ years of government negligence violated the Clause without particularized prejudice, Doggett). The right attaches at arrest or formal charge, whichever is first; pre-accusation delay is policed only by limitations statutes and due process (actual prejudice plus improper purpose). The only remedy is dismissal with prejudice.

C. Confrontation — The Crawford Line and Bruton

Rule (Crawford): The Confrontation Clause bars testimonial out-of-court statements of a non-testifying declarant unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination (Crawford v. Washington, scrapping Roberts reliability balancing). Testimonial statements include prior testimony, police-interrogation statements aimed at proving past events, and forensic lab certificates prepared for prosecution (Melendez-Diaz; Bullcoming — a surrogate analyst will not do; Smith v. Arizona — an expert conveying an absent analyst's assertions for their truth triggers the Clause). Under the primary purpose test, statements made to resolve an ongoing emergency are nontestimonial (the 911 call in Davis; the dying shooting victim in Bryant); narrative of past events after the emergency ends is testimonial (Hammon); a child's statements to teachers about abuse are nontestimonial (Clark). Forfeiture by wrongdoing requires intent to make the witness unavailable (Giles); dying declarations are a reserved historic exception. The Clause is satisfied whenever the declarant testifies and is subject to cross, however forgetful (Owens); one-way CCTV for child victims is permitted on case-specific findings of trauma (Craig).

Rule (Bruton): In a joint trial, admission of a non-testifying co-defendant's confession that facially incriminates the defendant violates the Confrontation Clause notwithstanding a limiting instruction (Bruton). Redaction that replaces the defendant's name with an obvious blank or "deleted" is insufficient (Gray); redaction that eliminates all reference to the defendant's existence, incriminating only by linkage to other evidence, is permissible (Richardson; Samia). Bruton does not apply if the co-defendant testifies, and applies only to testimonial statements after Crawford.

Rule (compulsory process & presence): The defendant has the right to compulsory process to obtain witnesses and to present a defense — arbitrary state rules excluding whole categories of defense evidence violate it (Washington v. Texas; Chambers) — and the right to be present at trial, forfeitable by voluntary absence after trial begins or by disruptive conduct (Allen). Compelling the defendant to stand trial in prison garb violates due process if objected to (Estelle v. Williams); visible shackling at guilt or penalty phase requires case-specific justification (Deck).

D. Jury Trial

Rule (right, size, unanimity): The jury right applies to serious offenses — authorized punishment exceeding six months (Duncan; Baldwin); contempt sentences are aggregated for the trial-right question. Size: six-member juries are constitutional (Williams v. Florida); five are not (Ballew); a six-member jury must be unanimous (Burch). Unanimity: the Sixth Amendment requires unanimous verdicts for serious offenses in both federal and state courts (Ramos v. Louisiana (2020), overruling Apodaca; not retroactive on collateral review, Edwards v. Vannoy).

Rule (cross-section): The jury venire must represent a fair cross-section of the community — systematic exclusion of distinctive groups (women, racial groups) is unconstitutional (Taylor v. Louisiana; Duren) — but the petit jury actually seated need not mirror the community.

Rule (Batson): Equal protection forbids peremptory strikes based on race or sex, by prosecution or defense (Batson v. Kentucky; McCollum; J.E.B.), and the defendant need not share the struck juror's race (Powers). Three steps: (1) prima facie showing of discrimination; (2) a race-neutral explanation (need not be persuasive at step two — Purkett); (3) the court decides pretext, with comparative-juror analysis a powerful tool (Miller-El; Flowers). Erroneous Batson denial is structural error. Also: jurors whose death-penalty views would prevent or substantially impair their duties are removable for cause (Witt); an impartial judge is a due-process essential (Tumey).

Rule (public trial): The accused (and the press/public under the First Amendment, Press-Enterprise) enjoy a right to a public trial extending to voir dire and suppression hearings (Presley; Waller); closure requires an overriding interest, narrow tailoring, consideration of alternatives, and findings. Denial is structural error on direct review, though an unpreserved claim raised via IAC requires a showing of prejudice (Weaver).

ESSAY WRITING TIP: For any trial-rights essay, classify the error: structural (total denial of counsel, biased judge, denial of self-representation, denial of public trial, defective reasonable-doubt instruction, racial discrimination in jury selection) means automatic reversal; everything else is trial error tested for harmlessness beyond a reasonable doubt under Chapman. Examiners reward the classification sentence.

XI. IDENTIFICATIONS

Rule (Sixth Amendment): A defendant has a right to counsel's presence at any post-charge corporeal lineup or showup (Wade; Gilbert) — but not at pre-charge lineups (Kirby) and never at photo arrays (Ash). Remedy: the uncounseled identification is per se excluded, and the witness's in-court identification is admissible only if the prosecution shows by clear and convincing evidence an independent source (witness's opportunity to observe at the crime itself).

Rule (due process): Any identification procedure violates due process if (1) unnecessarily suggestive and police-arranged (Perry) and (2) creating a substantial likelihood of irreparable misidentification. Even a suggestive procedure yields an admissible identification if reliable under the totality (Manson v. Brathwaite; Biggers factors: opportunity to view, attention, accuracy of prior description, certainty, elapsed time). Prompt one-person showups are disfavored but frequently upheld as necessary.

XII. PRETRIAL PROCEEDINGS, DISCLOSURE, AND GUILTY PLEAS

A. Initial Appearance, Bail, Preliminary Hearing, Grand Jury

Rule (Gerstein/bail): A warrantless arrestee is entitled to a prompt, nonadversarial judicial determination of probable cause — presumptively within 48 hours (Gerstein; McLaughlin); a violation does not void a later conviction. Bail: there is no absolute right to bail, but the Eighth Amendment forbids bail higher than necessary to assure appearance; preventive detention of dangerous arrestees is constitutional (United States v. Salerno). Bail rulings are immediately appealable.

Rule (preliminary hearing & grand jury): A defendant not yet indicted is generally entitled to an adversarial preliminary hearing on probable cause to prosecute (a critical stage; counsel attends), unless an indictment obviates it. The Fifth Amendment grand jury right is NOT incorporated against the states (Hurtado) — states may charge by information. Federal-model grand jury features: proceedings are secret; the witness has no right to counsel inside the room, no Miranda warnings (Mandujano), and no right to presentation of exculpatory evidence (Williams); the grand jury may rely on illegally seized evidence and hearsay (Calandra; Costello). Race discrimination in grand-jury composition voids a conviction despite a later fair trial (Vasquez v. Hillery).

B. Prosecutorial Disclosure — Brady and Giglio

Rule: Due process requires the prosecution to disclose, even without request, evidence that is (1) favorable to the accused — exculpatory or impeaching (Brady v. Maryland; Giglio — promises of leniency to key witnesses) — and (2) material: a reasonable probability of a different result, undermining confidence in the verdict (Bagley; Kyles — cumulative effect, with the prosecutor charged with police knowledge). Good or bad faith is irrelevant; the duty runs through trial and sentencing, but impeachment material need not precede a guilty plea (Ruiz). Destruction of merely potentially useful evidence violates due process only on police bad faith (Youngblood; Trombetta).

C. Guilty Pleas

Rule (Boykin colloquy): A guilty plea waives the privilege against self-incrimination, jury trial, and confrontation — so the judge must address the defendant personally, on the record, ensuring the plea is voluntary and intelligent: the defendant must understand (1) the nature of the charge and its critical elements (Henderson), (2) the maximum sentence and any mandatory minimum, and (3) the rights waived (Boykin v. Alabama). Collateral consequences generally need not be covered (but counsel must warn of clear deportation risk, Padilla). A defendant may plead guilty while protesting innocence if strong evidence of guilt appears on the record (North Carolina v. Alford); pleading to avoid death is not involuntary (Brady v. United States); and threatening re-indictment on a greater charge is permissible hard bargaining (Bordenkircher).

Rule (breach and withdrawal): Plea bargains follow contract principles: prosecutorial breach (recommending a sentence after promising silence) entitles the defendant to specific performance or withdrawal, at the court's option (Santobello); the defendant's breach permits reinstatement of charges (Ricketts). Collateral attack after a voluntary, counseled plea is limited to defects going to the power of the state to prosecute (facial double jeopardy, vindictive prosecution); antecedent constitutional violations — illegal searches, coerced confessions — are waived (Tollett; Class v. United States preserves facial challenges to the statute of conviction).

MBE TIP: A plea is not invalid merely because the defendant later learns the evidence was suppressible, his counsel underestimated the sentence, or he pled to dodge death. Attack pleas only through the colloquy's three subjects, involuntariness (actual coercion), ineffective assistance under Hill/Padilla, or prosecutorial breach under Santobello.

XIII. SENTENCING, PUNISHMENT, APPEALS, AND COLLATERAL REVIEW

A. Apprendi/Blakely and Sentencing Procedure

Rule: "Other than the fact of a prior conviction, any fact that increases the penalty beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt" (Apprendi v. New Jersey). The "statutory maximum" is the most a judge may impose based solely on the jury's verdict or the defendant's admissions (Blakely v. Washington; Booker made the federal Guidelines advisory). The rule extends to facts triggering mandatory minimums (Alleyne), criminal fines (Southern Union), and death-eligibility findings (Ring; Hurst); judges may still find facts for within-range and concurrent-vs-consecutive decisions (Ice). Sentencing courts may otherwise consider broad information, including hearsay; and vindictiveness is presumed when the same judge sentences more harshly after a successful appeal absent identified new conduct (North Carolina v. Pearce — no presumption for a different sentencer or pretrial charge increases, Goodwin).

B. Eighth Amendment — Proportionality, Death, and Juveniles

Rule (proportionality): Outside the capital context, the Eighth Amendment forbids only grossly disproportionate sentences — a narrow rule: life without parole for a third nonviolent felony and lengthy recidivist terms have been upheld (Harmelin; Ewing; Rummel; contrast Solem v. Helm, life without parole for a minor recidivist check fraud — unconstitutional).

Rule (capital limits): Death may not be mandatory (Woodson); discretion must be guided by non-vague narrowing aggravators (Gregg; Godfrey), and the defendant must be allowed to present all mitigating evidence (Lockett; Eddings). Death is unconstitutional for: rape of an adult (Coker) or of a child where the victim does not die (Kennedy v. Louisiana); felony-murder accomplices who neither killed nor intended killing, unless a major participant acting with reckless indifference to human life (Enmund; Tison); the intellectually disabled (Atkins; no rigid IQ-70 cutoff, Hall); prisoners insane at execution — they must rationally understand the reason for it (Ford; Panetti); and defendants under 18 at the offense (Roper).

Rule (juveniles, non-capital): Life without parole is unconstitutional for juveniles convicted of non-homicide offenses (Graham), and mandatory LWOP is unconstitutional for juvenile homicide offenders (Miller, retroactive per Montgomery); a discretionary LWOP sentence requires no separate finding of permanent incorrigibility (Jones v. Mississippi).

C. Appeals, Habeas, and Juvenile Proceedings

Rule: There is no federal constitutional right to appeal; but once a state provides appeals, indigents get appointed counsel on the first appeal as of right (Douglas) and free transcripts (Griffin v. Illinois) — not counsel for discretionary review (Ross v. Moffitt). Preserved constitutional errors require reversal unless harmless beyond a reasonable doubt (Chapman); structural errors reverse automatically; insufficiency review asks whether any rational trier, viewing the evidence favorably to the prosecution, could find guilt beyond a reasonable doubt (Jackson v. Virginia). Habeas corpus is a civil collateral attack: the petitioner must be "in custody," bears the burden by a preponderance, has no right to appointed counsel, and faces exhaustion and procedural-default barriers; Fourth Amendment claims fully litigated in state court are not cognizable (Stone v. Powell); states may appeal habeas grants without double-jeopardy problems; and new procedural rules generally do not apply retroactively on collateral review (Teague).

Rule (juveniles): Delinquency adjudications require written notice, counsel, confrontation, and the privilege against self-incrimination (In re Gault) and proof beyond a reasonable doubt (In re Winship); jeopardy attaches at the adjudicatory hearing, barring a later criminal trial for the same conduct (Breed v. Jones) — but there is no jury right (McKeiver), and pretrial preventive detention is permissible (Schall v. Martin).

XIV. THE CRIM LAW & PROCEDURE ATTACK PLAN

Substantive attack order. (1) Identify each chargeable crime and write its elements; default to common law unless the question supplies a statute or invokes the MPC. (2) Classify the mens rea — specific intent, malice, general intent, strict liability — because the classification controls which defenses (voluntary intoxication, unreasonable mistake) are even available. (3) For homicide, march the ladder: first-degree (statute) → common law murder through all four malice theories → felony murder with the BARRK/merger/agency checklist → voluntary manslaughter → involuntary manslaughter. (4) For theft crimes, classify by possession vs. title and timing of intent. (5) Sweep every actor for accomplice and Pinkerton liability, then inchoate crimes (conspiracy never merges; attempt and solicitation do). (6) Finish with defenses, separating justification from excuse, and flag the splits (retreat, bilateral/unilateral, agency/proximate cause).

Procedure attack order. (1) State action? (2) Standing — whose rights? (3) Search or seizure at all? (Katz REP or Jones trespass; open fields, third-party, dog sniffs say no; curtilage, Kyllo, Carpenter say yes.) (4) Warrant or recognized exception — SILA/Gant, automobile, plain view, consent, exigency, inventory, special needs. (5) Confession tracks: Miranda (custody + interrogation, any offense, no undercover) vs. Sixth Amendment (post-charge, offense-specific, undercover elicitation counts) vs. due process voluntariness (always available, never impeachment-usable). (6) Even if a violation, does the evidence come in anyway? — good faith, attenuation, independent source, inevitable discovery, impeachment, grand jury. (7) At trial, classify errors as structural vs. harmless, and remember the absolutes: acquittals are final, unanimity is required (Ramos), Batson and Faretta violations reverse automatically. The examiners reward the student who, having found a violation, still asks the last question: so what — is the evidence excluded, in this proceeding?

Related

➡ Criminal Law & Procedure One-Page Cheat Sheet
➡ California Criminal Law & Procedure Distinctions