Criminal Law and Procedure
Criminal Law and Procedure
The NextGen bar exam tests the elements of crimes, homicide, defenses, and police practices under the Fourth, Fifth, and Sixth Amendments. Expect fact patterns that require identifying the crime, the mental state, and the constitutionality of the investigation.
Core rules
- Actus reus and mens rea: purpose, knowledge, recklessness, and negligence; concurrence of act and mental state.
- Homicide: murder requires malice; felony murder requires an inherently dangerous felony; manslaughter includes heat of passion and criminal negligence.
- Defenses: self-defense, necessity, duress, insanity, and intoxication.
- Fourth Amendment: reasonableness; warrants; exceptions such as search incident to arrest, consent, exigency, and automobile.
- Fifth Amendment: Miranda applies to custody plus interrogation; waiver must be voluntary.
- Sixth Amendment: right to counsel at critical stages; identification procedures.
Worked example
Police arrest a suspect for shoplifting and question him in a closed room without Miranda warnings. He confesses. Miranda applies because the suspect is in custody and subject to interrogation. Arrest and closed-room questioning are custody; express questioning is interrogation. The confession is presumptively inadmissible unless an exception applies. If police had asked only routine booking questions, Miranda would not apply.
Traps
Custody is judged objectively; not every statement is interrogation. Search incident to arrest is limited to the arrestee's wingspan and nearby areas. A voluntary waiver can follow warnings, but silence alone is not a waiver. Do not confuse actual cause with mens rea.