Chapter 10: How to Conquer Criminal Law and Procedure on the California Bar Exam

Criminal Law and Procedure on the California Bar Exam

Criminal Law and Procedure is regularly tested on the California Bar Exam (about once every other year).

Criminal Law and Procedure is somewhat predictable in terms of how it is tested. Further, the California State Bar tends not to test California distinctions on Criminal Law and Procedure questions, which makes studying for Criminal Law and Procedure a little easier than some of the other California Bar Exam subjects.

Below, we tell you how to approach Criminal Law and Procedure on the essay portion of the California Bar Exam.

Criminal Law and Procedure on the California Bar Exam

1. First, know how Criminal Law and Procedure is tested. 

The California Bar Exam has virtually always tested general law (rather than California law) on Criminal Law and Procedure essay questions, as noted above.

Sometimes Criminal Law is tested. Other times, Criminal Procedure is tested. And often, they are combined together.

Criminal Law and Procedure has not been tested with another subject since 2008. Before 2008, it was tested with Constitutional Law and Evidence.

2. Be aware of the highly tested issues. 

The State Bar of California does not reinvent the wheel every time it writes a Criminal Law and Procedure question. Rather, there are certain issues that appear repeatedly in Criminal Law and Procedure questions on the California Bar Exam (We have a nice summary of these in our California Bar Exam One-Sheets. Click on the link to see a sample!)

Some highly tested Criminal Law and Procedure issues on the essay portion of the California Bar Exam include the following:

• Murder and manslaughter: It is important to know the distinctions between first-degree murder, second-degree murder, felony murder, voluntary manslaughter, and involuntary manslaughter. Not only are these issues popular on California Bar Exam essays but they also will make up about four MBE questions.
  • First-degree murder: requires both premeditation and deliberation.
  • Second-degree murder: There are three types of second-degree murder:
    • Intent to cause grievous bodily harm and the victim ends up dying.
    • Extreme recklessness regarding homicidal risk and someone dies (depraved-heart murder).
    • Intent to kill but without premeditation and deliberation and the victim dies.
  • Voluntary manslaughter: The intentional killing of a human being without malice aforethought committed in the heat of passion due to adequate provocation.
  • Involuntary manslaughter: This is (1) the killing of another human being due to recklessness or gross negligence, or (2) a killing during the commission of a misdemeanor or a felony that does not qualify for felony murder.

• Theft crimes: These include larceny, robbery, burglary, and receiving stolen goods.

• Inchoate crimes: These include attempt (occasionally tested with kidnapping), conspiracy, and solicitation. Attempt is the most highly tested inchoate crime and requires that the defendant have the specific intent to commit the crime and that the defendant get dangerously close to completing the crime.
• The Fourth Amendment: this expansive topic is the most highly tested Criminal Procedure topic on California Bar Exam essay questions!

• Fifth Amendment Miranda rights: this is the second most highly tested Criminal Procedure topic.

3. Make sure you have the rules and important legal terms memorized!

Memorize the rules!

Criminal Law is very rules-based. Oftentimes, if you memorize the elements of the law, applying them is pretty straightforward. This will help you on both the essay portion and the MBE portion of the California Bar Exam! Please read these tips on how to memorize your bar exam outlines if you are not sure where to begin.

Criminal Procedure is very case-based. So, you will be expected to know some terminology from cases and even references to case names (e.g., “Miranda,” “Terry,” etc.). By using the proper legal vocabulary, the grader will see that you know what you are talking about!

Some important Criminal Procedure rules

Below we list a few important Criminal Procedure terms. This is not a complete list. Rather, we hope it inspires you to make your own list of important legal terms, especially if you did not take Criminal Procedure in law school.

• Fifth Amendment Miranda rights attach upon a custodial interrogation.
• To invoke the right to remain silent, the invocation must be explicit, unambiguous, and unequivocal.

• The Fourth Amendment attaches when there is a reasonable expectation of privacy.

• Generally, a search or seizure under the Fourth Amendment requires probable cause.
• For a Terry stop, the police officer needs reasonable suspicion that criminal activity is afoot.
• For a Terry frisk, the police officer needs a reasonable belief that the suspect is armed and dangerous.

4. Practice! 

This is always our final tip because it is so important! The best way to become proficient at Criminal Law and Procedure essay questions is to practice writing answers to essay questions. This will help you become acquainted with how Criminal Law and Procedure is tested (including how it sometimes appears with other subjects, like Constitutional Law). And, it will help you master the highly tested issues.

Here are a few essay questions with student answers that we recommend you practice to get exposed to some highly tested topics in Criminal Law and Procedure essay questions:

• October 2020 Criminal Law and Procedure essay: this essay covers Criminal Law, Criminal Procedure, accomplice liability, burglary, larceny, conspiracy, duress, lineups, and the Fourteenth Amendment Due Process Clause (see essay question #4 on the exam).
• July 2019 Criminal Law and Procedure essay: this essay covers Criminal Law, Criminal Procedure, the Fourth Amendment, and robbery (see essay question #3 on the exam).
• February 2018 Criminal Law and Procedure essay: this essay covers Criminal Law, Criminal Procedure, the Fourth Amendment, plain-view exception, exclusionary rule, inevitable discovery, attempt, and kidnapping (see essay question #4 on the exam).
• February 2017 Criminal Law and Procedure essay: this essay covers Criminal Law, Criminal Procedure, the Fourth Amendment, search incident to lawful arrest, the Fifth Amendment, and solicitation (see essay question #6 on the exam).
• July 2015 Criminal Law and Procedure essay: this essay covers Criminal Procedure, the Fourth Amendment, the exclusionary rule, the reasonable expectation of privacy, and the plain-view exception (see essay question #3 on the exam).

Good luck studying for the California Bar Exam!

Go to the next topic, Chapter 11: Evidence.

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