NG Bar Part I Criminal Law common mistakes
NG Bar Part I Criminal Law · Understand the traps and how to avoid them.
Answering the mens rea question with the generic phrase 'intent' without specifying whether the exam is asking for purpose, knowledge, recklessness, or negligence as defined in the statute or the Model Penal Code hierarchy.
Candidates memorize elements lists as single words and treat 'intent' as a universal solvent; they never drill the state-of-mind ladder against fact patterns, so they default to the broadest label when the call of the question asks for the narrowest one.
What to do instead
Before writing, underline the mental-state word in the question and write the four-rung hierarchy (purpose/knowledge/recklessness/negligence) in the margin. For each fact, ask 'what did the actor believe and what did he know' and map that belief to the rung that fits; if the facts show awareness of a substantial risk, the answer is recklessness and not purpose, even if the result was intended in a loose sense.
Applying the common-law felony-murder rule to every felony in the fact pattern, including felonies that are independent of the killing or that are enumerated as merger-barred, without checking the jurisdiction's limitation.
The rule is taught as a headline doctrine, so candidates pattern-match 'felony plus death equals murder' and skip the two limiting tests (inherently dangerous felony, and merger of the underlying felony with the homicide) that most bar questions are actually testing.
What to do instead
Run a fixed checklist on every felony-murder fact pattern: (1) is the felony enumerated or inherently dangerous, (2) does it merge with the killing, (3) was the death a foreseeable consequence of the felony, (4) is the defendant the actual killer or a co-felon, and (5) does the jurisdiction follow the proximate-cause or agency theory for co-felons. Write the checklist out and answer only after each box is marked.
Treating attempt as if it requires the same completed conduct as the substantive crime, and failing to identify which test (last act, dangerous proximity, substantial step, equivocality) the question's facts are designed to trigger.
Candidates conflate attempt with conspiracy or with the completed offense and cannot recognize that the bar exam typically supplies facts that are either just short of the line or far past it, and the answer turns on which test the jurisdiction uses.
What to do instead
Memorize that attempt requires specific intent plus an act beyond mere preparation, and that the modern majority uses the substantial-step test. On each fact pattern, ask: did the actor take a step strongly corroborative of criminal purpose? Then check impossibility: factual impossibility is no defense, legal impossibility is. State the test by name in the answer.
Missing the withdrawal defense to conspiracy by assuming that any statement of withdrawal to co-conspirators ends liability, without distinguishing withdrawal from the conspiracy itself versus withdrawal from substantive crimes committed after withdrawal.
Candidates learn 'withdrawal is a defense' as a slogan and do not distinguish the two effects: withdrawal does not undo the conspiracy, but it can cut off liability for later substantive crimes if the defendant communicates withdrawal to all co-conspirators and does so in time.
What to do instead
On any conspiracy question, ask two separate questions: (1) did the defendant withdraw from the agreement (which requires communication to every co-conspirator and, under the Model Penal Code, also thwarting the conspiracy), and (2) did the withdrawal occur before the substantive crime so as to cut off liability for it? Also check whether the conspiracy is a unilateral or bilateral jurisdiction, since that changes who can be convicted.
Confusing the defenses of duress, necessity, and self-defense by applying the wrong one to the wrong threat source, and failing to note that duress is generally not a defense to intentional homicide.
All three defenses involve pressure to act, so candidates pick the one with the most sympathetic facts rather than the one that matches the source of the threat (human versus natural), the imminence requirement, and the proportionality requirement.
What to do instead
Build a three-column table: source of threat (human versus natural), imminence, proportionality, and availability for homicide. Duress requires a human threat of imminent death or serious bodily harm and is no defense to intentional killing; necessity requires a natural or non-human pressure and no clean hands; self-defense requires an imminent unlawful threat and reasonable force. Match the facts to the column before choosing.
Failing to apply the transferred-intent doctrine and the concurrence requirement when the defendant intends to harm one person but harms another, or forms intent after the actus reus.
Candidates see the harm to the unintended victim and either find no crime or find the wrong mental state, and they overlook that intent must concur with the act, so a later-formed intent cannot retroactively supply mens rea.
What to do instead
State the rule explicitly: transferred intent moves the mens rea from the intended victim to the actual victim and does not multiply liability, and concurrence requires that the mens rea exist at the moment of the actus reus. On each fact pattern, draw a timeline and place the intent and the act on it; if intent appears after the act, the crime is not complete.
Misapplying the proximate-cause analysis in homicide by stopping at factual cause ('but for') and never addressing intervening causes, foreseeable versus unforeseeable responses, and the year-and-a-day rule where the jurisdiction retains it.
Candidates learn causation as a single 'but for' test and treat the medical-treatment and victim-response cases as automatic, so they miss that the exam is testing whether the intervening act was a foreseeable response to the defendant's conduct.
What to do instead
Always write two sentences: factual cause (but for the defendant's act, would the death have occurred?) and proximate cause (was the death a foreseeable result, and was any intervening act a normal response rather than an independent, unforeseeable cause?). Note that negligent medical treatment and a victim's reasonable attempt to escape are generally foreseeable and do not break the chain.
Treating the corpus delicti rule, the accomplice-liability scope, and the natural-and-probable-consequences doctrine as interchangeable, so the answer assigns liability to an accomplice for crimes the principal committed outside the common plan.
Candidates memorize 'accomplice liability equals the principal's liability' and do not distinguish the common-plan scope from the natural-and-probable-consequences extension, nor do they check whether the accomplice actually aided, abetted, or encouraged the specific crime.
What to do instead
On accomplice questions, ask: what did the accomplice intend to assist, and was the resulting crime within the common plan or a natural and probable consequence of it? Remember that mere presence or knowledge without assistance is not enough, that withdrawal requires communication and neutralization of prior aid, and that the accomplice can be liable for the principal's crime even if the principal is acquitted under the unilaterally-conceived-crime approach.
Skipping the grading hierarchy in inchoate and theft offenses, such as failing to distinguish larceny from robbery by the element of force or fear, or embezzlement from larceny by the element of lawful possession at the time of conversion.
The offenses look similar in narrative form, so candidates answer with the most serious label that fits the facts rather than the label that matches the precise element the facts establish, and they overlook that the bar exam often asks 'what is the most serious crime of which the defendant can be convicted.'
What to do instead
Memorize element-difference pairs (larceny versus robbery: force or fear; larceny versus embezzlement: possession versus custody; larceny versus false pretenses: title passes or not; robbery versus extortion: threat of future harm versus immediate force). On each question, write the distinguishing element next to the crime and eliminate offenses whose element is not met before selecting the most serious remaining offense.
Ignoring the specific-intent versus general-intent classification when evaluating the availability of the mistake-of-fact defense and the voluntariness of intoxication, so the defense is granted or denied without regard to the offense's mental state.
Candidates learn mistake and intoxication as standalone defenses and do not attach them to the intent classification, so they miss that a reasonable mistake of fact negates specific intent but not general intent, and that voluntary intoxication is a defense only to specific-intent crimes.
What to do instead
For every defense question, first classify the offense as specific or general intent, then ask whether the mistake or intoxication negates the required mental state. Write the classification in the margin before analyzing the defense, and remember that involuntary intoxication and insanity follow different rules that must be analyzed separately.