Criminal Law on the MBE: Homicide, Inchoate Crimes, and the Rules That Matter

Criminal Law accounts for roughly 25 of the 175 scored MBE questions. It is one of the more memorization-heavy subjects because the distinctions between crimes are precise and the MBE tests whether you know the exact elements, not just the general concept.

Homicide: The Core of Criminal Law on the MBE

Homicide questions dominate Criminal Law on the MBE. You need to know the hierarchy cold.

First-Degree Murder

Premeditated and deliberate killing. The MBE tests whether the facts show actual premeditation (planning, motive, manner of killing) versus a heat-of-the-moment act. Even a brief moment of deliberation can suffice.

Also includes felony murder during an inherently dangerous felony (BARRK: burglary, arson, robbery, rape, kidnapping).

Second-Degree Murder

A killing with malice aforethought but without premeditation. This includes:

• Intent to kill without premeditation
• Intent to cause serious bodily harm
• Depraved heart (reckless disregard for human life)

The depraved heart category is heavily tested. Russian roulette, firing into a crowd, driving at extreme speed through a crosswalk — these are classic MBE depraved heart patterns.

Voluntary Manslaughter

An intentional killing committed in the heat of passion after adequate provocation. The elements:

1. Adequate provocation (objective: would a reasonable person lose self-control?)
2. Actual heat of passion (subjective: did this defendant actually lose self-control?)
3. No adequate cooling time
4. Causal connection between the provocation and the killing

The MBE tests what constitutes adequate provocation. Being told about adultery is generally not enough. Catching a spouse in the act generally is. Words alone are traditionally insufficient.

Involuntary Manslaughter

An unintentional killing resulting from criminal negligence or during the commission of an unlawful act not amounting to a felony (misdemeanor manslaughter).

The line between depraved heart murder and involuntary manslaughter is one of degree: how extreme was the risk? If extremely reckless, it is murder. If merely criminally negligent, it is manslaughter.

Felony Murder

A killing that occurs during the commission or attempted commission of a qualifying felony. Key rules:

• The death must be foreseeable
• The felony must be independent of the killing (merger doctrine — assault cannot be the predicate felony for felony murder)
• Most jurisdictions limit felony murder to inherently dangerous felonies
• An accomplice can be liable for felony murder committed by a co-felon
• The Redline limitation: in many jurisdictions, if a victim or police officer kills a co-felon, the surviving felons are not liable for felony murder

Inchoate Crimes

Attempt

A substantial step toward completing a crime with the specific intent to commit that crime. Key MBE points:

• Attempt is a specific intent crime even if the underlying crime is not
• Mere preparation is not enough; there must be a substantial step
• Legal impossibility is a defense; factual impossibility is not
• Abandonment is generally not a defense at common law (but is under the MPC if voluntary and complete)

Conspiracy

An agreement between two or more persons to commit a crime. Key MBE points:

• At common law, requires a bilateral agreement (both parties must genuinely agree). Under the MPC, a unilateral approach allows conviction even if the other party is feigning agreement.
• Most jurisdictions require an overt act (any act in furtherance, even minor)
• Pinkerton liability: each conspirator is liable for crimes committed by co-conspirators in furtherance of the conspiracy
• Withdrawal ends future liability for co-conspirators' acts but does not undo the conspiracy itself

Solicitation

Asking, encouraging, or requesting another person to commit a crime. Merges into conspiracy if the person agrees, or into the completed crime if it is carried out.

Accomplice Liability

A person is liable as an accomplice if they:

1. Assist, encourage, or facilitate the crime
2. With the intent that the crime be committed

An accomplice is liable for the target crime and any other foreseeable crimes committed during its execution. Mere presence at the scene is not enough. Mere knowledge that a crime will be committed is not enough without intent to facilitate.

Defenses

Self-Defense

A person may use reasonable force to defend against an imminent unlawful attack. Deadly force is justified only when the person reasonably believes they face imminent death or serious bodily harm.

The initial aggressor generally cannot claim self-defense unless they withdraw and communicate that withdrawal. The MBE tests whether the defendant was the initial aggressor and whether deadly force was proportionate.

Insanity

Four tests exist, and the MBE may identify which one applies:

• M'Naghten: Did not know the nature/quality of the act or that it was wrong
• Irresistible impulse: Unable to control conduct
• Durham: The act was a product of mental disease
• MPC/ALI: Lacked substantial capacity to appreciate the criminality or conform conduct to the law

Intoxication

• Voluntary intoxication is a defense only to specific intent crimes (not general intent)
• Involuntary intoxication is treated like insanity

Mistake

• Mistake of fact: a defense if it negates the required mental state
• Mistake of law: generally not a defense

Study Strategy

Build a homicide flowchart: was there a killing? Was it intentional? Was there premeditation? Was there provocation? Was it during a felony? The MBE tests whether you can classify the homicide correctly given the facts. Drill the distinctions until classification is automatic.