Murder versus manslaughter
Attempt, solicitation and conspiracy
Solicitation is asking another to commit a crime, and it is complete when the request is made. Conspiracy is an agreement to commit an unlawful act, with an overt act required in many jurisdictions, and it does not merge into the completed crime. Attempt requires intent and a substantial step toward the crime. Solicitation merges into the completed crime, and attempt merges into it too, while conspiracy does not.
Fourth Amendment versus Fifth Amendment
The Fourth Amendment protects against unreasonable searches and seizures and asks about a reasonable expectation of privacy and probable cause or a warrant exception. The Fifth Amendment protects against compelled self-incrimination, and Miranda warnings are required only for custodial interrogation. A search can violate the Fourth Amendment without any Miranda issue, and a confession can violate Miranda without any illegal search.
Exclusionary rule
Evidence obtained in violation of the Fourth Amendment is generally excluded, along with derivative fruit, subject to exceptions such as independent source, inevitable discovery, attenuation and good faith. The rule applies to the government's case in chief, and exceptions apply, for example, to impeachment of a defendant.
State action and rights
Most constitutional guarantees restrain the government, not private parties, so first ask whether there is state action. A private entity performing a traditional exclusive government function, or acting jointly with the state, can qualify. If there is none, the constitutional claim fails no matter how unfair the conduct.
Levels of scrutiny
Strict scrutiny applies to fundamental rights and suspect classifications like race or national origin, and requires the law to be necessary to a compelling interest. Intermediate scrutiny applies to gender and nonmarital status, and requires the law to be substantially related to an important interest. Rational basis applies to most other classifications and economic regulation, and requires a rational relation to a legitimate interest. Identify the right or class first, then the tier, then who bears the burden.
2 original practice questions
Answer each question, then check it. Your result is saved on this device and counts toward your study dashboard.
Question 1
A man asks his friend to burn down a building for insurance money. The friend agrees and buys gasoline but is arrested before going to the building. The man takes no other step. Which statement is most accurate about the man's liability?
Question 2
A state law bans women from serving as bartenders unless they are the wife or daughter of the bar owner. Which standard of review applies?
Common questions
Does a conspiracy merge into the completed crime?+
No. Solicitation and attempt merge into the completed offense, but conspiracy generally does not, so a defendant can be convicted of both conspiracy and the completed crime.
What is the difference between the Fourth and Fifth Amendment on the bar exam?+
The Fourth Amendment governs searches and seizures and produces exclusion of physical or other evidence, and the Fifth governs compelled self-incrimination and Miranda in custodial interrogation.
Which level of scrutiny applies to gender classifications?+
Intermediate scrutiny. The government must show the classification is substantially related to an important interest, which is a harder showing than rational basis and an easier one than strict scrutiny.
What to do next
- 1
Build a table of mental states and crimes.
- 2
Practice naming the actor, right and standard for ten constitutional facts.
- 3
Do a mixed criminal law and procedure set.