Criminal Law and Procedure

Criminal Law and Procedure on the CP Exam

Criminal Law and Procedure accounts for 7% of the CP exam. While a smaller section, it covers constitutional protections that are fundamental to the legal system. Questions tend to focus on constitutional amendments, elements of crimes, and procedural requirements.

Constitutional Protections

• Fourth Amendment: Protects against unreasonable searches and seizures. Warrants require probable cause, particularity, and judicial authorization. Exceptions: consent, plain view, search incident to arrest, automobile, exigent circumstances, stop and frisk (Terry stops).
• Fifth Amendment: Right against self-incrimination (Miranda warnings required during custodial interrogation), double jeopardy (cannot be tried twice for the same offense by the same sovereign), due process (substantive and procedural), grand jury indictment requirement for federal felonies.
• Sixth Amendment: Right to counsel (attaches at initiation of formal proceedings), right to a speedy and public trial, right to an impartial jury, right to confront witnesses (Confrontation Clause), right to compulsory process.
• Eighth Amendment: Prohibition against excessive bail, excessive fines, and cruel and unusual punishment.
• Fourteenth Amendment: Due process and equal protection applied to the states. Incorporates most Bill of Rights protections against state action.

Elements of a Crime

• Actus reus: The voluntary criminal act or omission (when there is a duty to act).
• Mens rea: The mental state. Model Penal Code levels: purposely, knowingly, recklessly, negligently. Common law: specific intent, general intent, strict liability.
• Causation: The defendant's act must be both the actual (but-for) and proximate (legal) cause of the harm.
• Concurrence: The mens rea must exist at the same time as the actus reus.

Defenses

• Self-defense: Reasonable belief of imminent danger. Force used must be proportional to the threat.
• Insanity: M'Naghten (did not know nature of act or that it was wrong), irresistible impulse, substantial capacity (MPC).
• Entrapment: Government induced the defendant to commit a crime they were not predisposed to commit.
• Duress: Threat of imminent death or serious bodily harm. Not available for murder.

Practice criminal law questions with CP exam practice tests and review key amendments with flashcards. Sign up free to access all materials.