This guide focuses on library and internet resources for researching or studying the topic, "Criminal Law & Constitutional Protections of Accused Persons" (Criminal Law and Criminal Procedure) for the NextGen bar exam. Secondary sources, such as law texts & treatises are included. You will also find suggested print and online study aids. If you have any questions about locating these materials, please ask a law librarian, we are here to help.
Topics in this outline will be tested using tasks from the Foundational Skills outline. Questions may test topics from more than one subject area.
Examinees may expect that some questions will be presented with legal resources. When legal resources are provided within the test, the examinee will be expected to demonstrate their ability to efficiently analyze and apply the legal resources to answer the question or questions.
Within this outline, there are two types of topics:
Topics with a star symbol *
Topics followed by a star symbol require an examinee to rely solely on recalled knowledge and understanding of the topic; they will be tested without provision of legal resources.
Topics without a star symbol
Topics without a star symbol may be tested with or without provision of legal resources. When these topics are tested without legal resources, the examinee is expected to rely on recalled knowledge and understanding that will enable the examinee to demonstrate recognition that the topic is at issue in the fact scenario.
Elements of crimes and defenses will be tested on the basis of provided statutes.
If a particular topic’s scope is described in this outline, that does not indicate greater importance or testing frequency of the topic.
I. General principles
A. Acts and omissions
This topic includes voluntariness, omission as an act, and possession as an act.
B. State of mind
This topic includes the distinction between specific and general intent, the distinction
between motive and intent, and the different levels of culpability for the listed subtopics.
Examinees should understand different mental states and recognize them when they are
presented in the language of specific statutes.
1. Intent or purpose
2. Knowledge
3. Recklessness
4. Criminal negligence
5. Mistake of fact or law
C. Defenses
1. Provocation
2. Intoxication
3. Self-defense
4. Defense of others
5. Defense of property
D. Jurisdiction
This topic includes federal criminal jurisdiction and state criminal jurisdiction as specified by statute.
E. Burdens of proof and persuasion *
This topic includes the presumption of innocence and the differences between reasonable suspicion, probable cause, and proof beyond a reasonable doubt. This topic also includes prosecution and defense burdens of proof and a defendant’s right to present evidence.
II. Statutory crimes
A. Homicide (including felony murder)
This topic includes the distinctions in levels of intent (described in section I) for homicide charges, felony murder, and vehicular manslaughter. This topic also includes distinctions
in homicide offenses, including between intentional murder (premeditated and impulsive killings) and manslaughter (provocation or extreme emotional disturbance doctrine), unintentional murder and manslaughter (depraved indifference, recklessness, and criminal negligence), and felony murder and vehicular manslaughter.
B. Theft
This topic includes statutory theft, aggravated theft, and defenses to these crimes.
C. Burglary
This topic includes statutory burglary, aggravated burglary, and defenses to these crimes.
D. Robbery
This topic includes statutory robbery, aggravated robbery, and defenses to these crimes.
E. Assault and battery
This topic includes statutory assault and battery, aggravated assault and battery, and defenses to these crimes.
F. Possession and trafficking offenses
This topic includes statutory possession crimes (e.g., possession of drugs, guns, or contraband), possession with intent to distribute, contraband trafficking crimes, and defenses to these crimes.
G. Operating a motor vehicle while impaired or under the influence and vehicular manslaughter
This topic includes driving while impaired or under the influence, vehicular manslaughter, and defenses to these crimes.
III. Inchoate crimes and parties to a crime
A. Attempt
This topic includes the elements of attempt, defenses to attempt, different formulations of the actus reus requirement (including the “substantial step” test), and general vs. specific intent, as well as lesser included offenses and the merger doctrine.
B. Conspiracy
This topic includes the elements of conspiracy, defenses to conspiracy, and liability of coconspirators for a substantive crime.
C. Parties to crime
This topic includes accomplices and accessories before and after the fact.
IV. Constitutional protections of accused persons
Note: Examinees should answer questions based on protections provided by the US Constitution only.
A. Arrest, search, and seizure [Fourth Amendment]
1. Search *
This topic includes the concept of a reasonable expectation of privacy as applied to certain circumstances, including open fields, surveillance, technological information gathering, false friends, dog sniffs, and curtilage.
2. Reasonable suspicion and probable cause *
3. Search warrant and exceptions *
This topic includes requirements for obtaining a valid search warrant, exceptions to the warrant requirement (e.g., search incident to lawful arrest, automobile exception, plain view, consent, stop-and-frisk, hot pursuit, exigent circumstances, community caretaking), and requirements for proper execution of a search warrant (e.g., “knock and announce” and exceptions, proper scope of search, methods that “shock the conscience”).
4. Seizure of persons (Terry stop and arrest) *
5. Administrative and suspicionless searches
This topic includes border searches, inventory searches, airport searches, checkpoints, searches of government offices, and searches in public schools.
6. Exclusionary rule and exceptions *
This topic includes application of the exclusionary rule and exceptions to the rule (e.g., fruits doctrine, independent source, inevitable discovery, good-faith doctrine, “knock and announce” exception, use of evidence for impeachment).
7. Standing to object, including coconspirators and third parties, and state action doctrine
B. Confession and privilege against self-incrimination [Fifth Amendment]
1. Triggering the Fifth Amendment privilege against self-incrimination (including “testimonial” versus “nontestimonial” standard and incrimination standard) *
2. Triggering Miranda rights *
This topic includes custody, interrogation, and custodial statements.
3. Adequacy of Miranda warnings *
4. Invoking and waiving Miranda rights *
This topic includes the differences between the Fifth Amendment right to counsel and the Sixth Amendment right to counsel, how a person must assert Miranda rights, when the rights are properly waived, and what types of subsequent law-enforcement conduct are allowed (e.g., resuming questioning after a lapse of time, questioning about other crimes, questioning after custody has ended, questioning by informants).
5. Involuntariness under the Fifth and Fourteenth Amendments *
6. Exclusionary rule and exceptions *
C. Right to counsel (including ineffective assistance of counsel) [Sixth Amendment]
1. When the right attaches *
2. Waiver of the right to counsel *
3. Ineffective assistance of counsel *
4. Right to counsel of one’s choice
5. Exclusionary rule
D. Right to disclosure of exculpatory and impeachment evidence
E. Due process implications related to identification
This topic includes the due process implications of lineups, showups, voice exemplars, and photo arrays.
F. Right to trial by jury