Approaching Criminal Law Questions on the MBE

The Multistate Bar Exam can be a nightmare for bar exam takers, especially with the myriad topics covered on the MBE. The MBE tests seven different subjects: Civil Procedure, Constitutional Law, Contracts, Evidence, Real Property, Torts, and Criminal Law and Procedure. Of those subjects, Criminal Law and Procedure can be especially daunting because it essentially combines two subject matters into one.

Of the 175 scored questions on the MBE, 25 of those are in Criminal Law and Procedure. Broken down even further, 12-13 of those questions will fall under Criminal Procedure while the other 12-13 questions will fall under Criminal Law. Within Criminal Law, you’ll encounter the following:

• Homicide: 3-4 questions
• Other crimes: 3-4 questions
• Inchoate crimes: 3-4 questions
• General principles: 3-4 questions

Fortunately, you can quickly improve your MBE score by following a solid approach to answering Criminal Law questions on the MBE.

1. Approach Each Criminal Law Question as though it were an Essay

When answering MBE questions, especially Criminal Law questions, you should approach each question as though it were an essay. Simply put, this means identifying the issue or issues, recalling the applicable rule or rules of law, applying the rules to the facts, and reaching a conclusion even before you look at the answer choices.

With Criminal Law questions, the call of the question will often guide you directly to the issue. For example, Criminal Law MBE questions have asked:

• What is the man’s strongest defense to a burglary charge?
• Can the man properly be convicted of felony murder?

Because the call of the question often pinpoints the issue, one of the most difficult aspects of answering an MBE question is already done for you. With the issue identified, your next task is recalling the specifics of the applicable rule that applies. This is good news: you can increase your Criminal Law MBE score by mastering the rules through your routine study habits and completing practice questions.

In addition to honing in on your general approach to Criminal Law MBE questions, you can master the highly tested Criminal Law topics: homicide, inchoate crimes, and property-based crimes.

2. Navigate the Homicide Questions

A full quarter of the questions you’ll encounter on the Criminal Law section of the bar exam involve homicide and its defenses. Specifically, homicide questions cover both intended killings and unintended killings. One of the best ways to make sure you know all of the differences between the different homicide rules, including the differences between intentional killings and unintentional killings, is to create a chart that lists each offense and the accompanying elements of each rule. Make sure your chart includes first-degree murder, voluntary manslaughter, second-degree murder, involuntary or misdemeanor manslaughter, and felony murder.

Homicide questions present a great opportunity to snag some points on the MBE. You have a discrete set of rules to apply, and there are only so many different ways the bar examiners can ask these questions. Memorizing the rules and doing practice questions will ensure you nail these questions on exam day.

3. Memorize the Crimes in the “Other Crimes” Category

The “other crimes” category can seem daunting, but it boils down to only having to memorize rules for a set number of crimes. These crimes include the following: theft and receiving stolen goods, robbery, burglary, assault and battery, rape, kidnapping, arson, and possession offenses. As with the homicide questions, the key to acing these questions is to memorize the elements of each offense.

Of the “other crimes,” be sure to pay special attention to the differences between theft, robbery, and burglary. Because these crimes can often have similar or overlapping fact patterns, they are a favorite of the bar examiners to test your ability to parse the distinctions between rules.

4. Don’t Let the Intricacies of Inchoate Crimes Scare You Away

“Inchoate crimes” are simply crimes that are not complete. Inchoate crimes include attempt, solicitation, and conspiracy.

Within the inchoate crimes category, the doctrine of merger routinely comes into play. The call of the question on the MBE often asks what offense a defendant can be charged with. When the bar examiners ask a question like this, they’re hoping to trip up those who can’t parse between crimes that are not yet complete (the inchoate crimes) and crimes that have been completed. Under the doctrine of merger, if the defendant has completed the crime, then the offenses of attempt and solicitation merge with the completed crime. Conspiracy, however, is not subject to the doctrine of merger: it remains a standalone crime.

5. Recall the General Principles that Apply to Criminal Law

Under the “general principles” category of questions tested on the MBE, you’ll encounter questions about defenses to a crime, the prosecution’s burden of proof, and the requisite mental state to be found guilty of an offense.

To succeed on these questions, make sure you understand the differences between mental states. For instance, while specific intent crimes require the defendant to act with the purpose of achieving a specific result, general intent crimes simply require that the defendant intended to an act, regardless of the intended result. Making flashcards or a chart detailing the differences between mental states can go a long way in helping you memorize each.

The MBE may be daunting, but Criminal Law questions are a great way for you to improve your score. By developing a methodical approach and diligently memorizing the elements of different crimes, you’ll feel comfortable on exam day when you encounter a Criminal Law question.