Criminal Law and Procedure has 25 scored MBE questions, split between substantive offenses and defenses on one side and constitutional criminal procedure on the other, and it appears on the MEE as well. The substantive half asks you to define an offense by its elements, such as the four forms of common-law malice for murder, then test defenses and inchoate liability against the facts. The procedure half turns on the Fourth, Fifth and Sixth Amendments: whether there was a search, whether a warrant exception applies, whether Miranda was triggered, and whether counsel was required. A fact pattern will often raise a substantive issue and a procedure issue in the same question, so decide which half each call is actually asking about before answering. The outline for this subject is easier to skim before the exam than to learn from.
Murder is an unlawful killing with malice aforethought, shown by intent to kill, intent to cause serious bodily harm, depraved-heart recklessness, or qualifying felony murder.
Elements and checkpoints
Unlawful killing
Actual and proximate causation
One malice form
No adequate mitigation
Exam trap
Premeditation is associated with first-degree murder statutes, not required for common-law malice.
Application example
Firing into a crowded room without targeting anyone may show depraved-heart malice.
Attempt requires specific intent to commit the target offense plus an act sufficiently close under the jurisdiction’s test, commonly a substantial step strongly corroborative of criminal purpose.
Elements and checkpoints
Specific intent
Substantial step or dangerous proximity
Beyond mere preparation
No completed offense required
Exam trap
Factual impossibility ordinarily is not a defense; legal impossibility may be.
Application example
Arriving with tools and beginning to force the target safe can be a substantial step even if the safe is empty.
An accomplice intentionally aids, encourages, or facilitates the principal with the purpose required by the jurisdiction and is liable for the target crime and often foreseeable crimes in furtherance.
Elements and checkpoints
Aid or encouragement
Required intent
Principal offense
Scope of derivative liability
Exam trap
Mere presence and knowledge are generally insufficient without a duty or purposeful assistance.
Application example
Serving as a planned lookout with intent to facilitate burglary creates accomplice liability.
A nonaggressor may use proportionate force when reasonably believing it necessary against imminent unlawful force; deadly force generally requires a threat of death or serious bodily harm.
Elements and checkpoints
Reasonable belief
Imminence
Unlawfulness
Proportionality
Aggressor and retreat rules
Exam trap
Deadly force is not justified solely to protect property.
Application example
A reasonable response to an immediate knife attack may include deadly force.
Government conduct is a search when it intrudes on a reasonable expectation of privacy or physically trespasses on protected persons, houses, papers, or effects to obtain information.
Elements and checkpoints
Government action
Search or seizure
Standing through personal rights
Warrant or exception
Proper scope
Exam trap
A defendant cannot vicariously assert another person’s Fourth Amendment rights.
Application example
Placing a tracking device on a suspect’s car to obtain information can be a search.
After a lawful custodial arrest, police may search the arrestee and the area within immediate control; vehicle searches incident to arrest follow narrower rules.
Elements and checkpoints
Lawful arrest
Contemporaneous search
Permitted person and grabbing area
Vehicle-specific justification
Exam trap
Police may not automatically search an entire vehicle whenever a recent occupant is arrested.
Application example
A vehicle passenger compartment may be searched if the arrestee can access it or evidence of the arrest offense may be inside.
Miranda warnings precede custodial interrogation. Custody asks whether a reasonable person would feel freedom curtailed to the degree associated with formal arrest; interrogation includes words reasonably likely to elicit an incriminating response.
Elements and checkpoints
Government questioning
Custody
Interrogation
Warnings and valid waiver
Invocation rules
Exam trap
A routine traffic stop ordinarily is not Miranda custody, though roadside questions can still be interrogation.
Application example
Direct questioning after handcuffing and station-house detention requires warnings absent an exception.
After adversarial judicial proceedings begin, the accused has a right to counsel at critical stages, and government deliberate elicitation about the charged offense without counsel violates that offense-specific right.
Elements and checkpoints
Formal commencement
Charged offense
Critical stage or deliberate elicitation
No valid waiver
Exam trap
The Sixth Amendment right is offense specific; Miranda’s Fifth Amendment protection is not framed the same way.
Application example
A wired informant deliberately eliciting statements about an indicted charge can violate the right.
Jeopardy attaches when the jury is sworn or, in a bench trial, when the first witness is sworn, barring successive prosecution or multiple punishment for the same offense subject to exceptions.
Elements and checkpoints
Attachment
Same sovereign
Same offense under elements test
No mistrial or appeal exception
Exam trap
Separate sovereigns may prosecute the same conduct under their respective laws.
Application example
A conviction reversed for insufficient evidence generally cannot be retried; reversal for trial error generally can.
The course separately measures retrieval, discrimination, fact application, writing, integrated judgment, and timed completion so memorization is never mistaken for readiness.
STAGE 1
Learn
Read the full outline, rule boundaries, and worked application.
Questions about Criminal Law & Procedure on the bar exam
How many Criminal Law and Procedure questions are scored on the MBE?+
25 of the 175 scored questions, since NCBE distributes them evenly across the seven subject areas.
Which Criminal Law and Procedure category is tested most?+
Constitutional protection of accused persons. NCBE says approximately half the questions are based on it, and the other half come from the four remaining categories.
What are the five categories in NCBE's Criminal Law and Procedure outline?+
Homicide, other crimes, inchoate crimes and parties, general principles, and constitutional protection of accused persons, numbered I through V in the outline.
Where does the right to counsel appear in the Criminal Law and Procedure outline?+
In category V, constitutional protection of accused persons, as topic D, after lineups and other forms of identification and before fair trial and guilty pleas.
What legal standard applies to MBE criminal law questions?+
Each question is designed to be answered according to generally accepted fundamental legal principles unless noted otherwise, according to NCBE.
How many questions are on the MBE in total?+
200 multiple-choice questions, 175 scored and 25 unscored pretest questions, which NCBE says are indistinguishable from scored ones.
Should I answer unscored pretest questions?+
Yes. NCBE says pretest questions are indistinguishable from those that are scored, so examinees should answer all questions.
How long are the MBE sessions?+
Three hours each with 100 questions per session and no scheduled breaks during either session, according to NCBE.