Criminal Law on the Multistate Essay Exam: Highly Tested Topics and Tips
Here, we give you an overview of Criminal Law on the Multistate Essay Exam (MEE). We will reveal some of the highly tested topics and give you tips for approaching a Criminal Law Multistate Essay Exam question.
Criminal Law appears consistently on the Multistate Essay Exam, even if it is not tested quite as much as other MEE subjects.
Note that when we refer to “Criminal Law” generally, we are referring to both Criminal Law and Procedure. (As noted below, they are both tested relatively equally!)
In this post, we give you tips for approaching Criminal Law on the Multistate Essay Exam and we reveal some of the highly tested issues in Criminal Law MEE questions.
Criminal Law on the Multistate Essay Exam
1. First, be aware of how Criminal Law is tested
Criminal Law is tested with relative frequency. It is tested, on average, a little less than once per year.
Note that, in general, Criminal Law or Criminal Procedure is tested. (They have been combined before, e.g., in July 2009; but usually, it is one subject or the other that’s tested.) Criminal Law and Criminal Procedure are tested about evenly—so the chances of seeing a Criminal Law question are about as good as seeing a Criminal Procedure question.
Twice recently (on the July 2017 and July 2016 MEEs) Criminal Procedure was combined with Evidence. In both cases, a Miranda issue was tested with hearsay. This is a recent “crossover” between these two subjects but it’s good to be aware of it in case the Examiners decide to test Criminal Law in this way again!
2. Be aware of the highly tested Criminal Law issues
The Examiners tend to test several of the same issues repeatedly in Criminal Law Multistate Essay Exam questions. You can maximize your score by being aware of these highly tested issues. (We have a nice summary of these in our MEE One-Sheets if you want to see all of them and have them all in one place.)
Some of the highly tested Criminal Law Multistate Essay Exam issues include:
In the area of Criminal Law, homicide is the most highly tested topic. Homicide is also very important to know for the Multistate Bar Exam (MBE) since 3–4 scored MBE questions will test homicide. For your purposes, the most important thing you can do is to understand the distinctions between first- and second-degree murder, and voluntary and involuntary manslaughter. To assist you, we have a chart which may help keep these distinctions straight!
The issue of causation often is tested with homicide. Remember that the defendant’s actions must be the actual and proximate cause of the victim’s death. (Apply the same principles you learn when you study negligence in Torts.)
The defense of insanity (the M’Naghten test) has appeared twice now on the bar exam in July 2015 and February 2018. We recommend you review the February 2018 MEE point sheets to see how much detail this was tested in on that exam. (Note that the other defense that has been tested is duress. That was tested in July 2015.)
The Fifth Amendment
The most tested topic, by far, in Criminal Law and Procedure Multistate Essay Exam questions is the Fifth Amendment. Specifically, Miranda warnings. You should know:
- When are Miranda warnings needed? When there is a “custodial interrogation.”
- How are Miranda rights waived? They are waived if the suspect makes a “knowing, intelligent, and voluntary” waiver.
- How are Miranda rights invoked? The suspect must be explicit, unambiguous, and unequivocal in invoking his rights. (So, he must say something like, “I want a lawyer” or “I am exercising my right to remain silent.” He cannot merely say “I think I want a lawyer” or remain silent when asked questions.)
- What happens if a violation occurs? The statements are excluded from the prosecutor’s case-in-chief. However, any “physical fruits” can be admitted against the defendant if the defendant made the statements voluntarily. Students often mix this up! So, let’s say a defendant was not properly given Miranda warnings despite that fact that he was in custody and being interrogated. And let’s say he confessed to murdering a victim and stated, “the weapon is in the cellar of my uncle’s basement.” The prosecutors thereafter recover the weapon. The defendant’s statements could not be admitted against him in the prosecutor’s case-in-chief. However, the “physical fruits”—in this case, the weapon—could be (assuming the defendant made his statements voluntarily).
The Fourteenth Amendment and Sixth Amendment have also appeared on Criminal Procedure MEE questions. However, the Fifth Amendment is the Examiners’ favorite issue to test.
Also, please memorize the key vocabulary above (e.g., “custodial interrogation,” “knowing, intelligent, and voluntary” waiver). These are words that the graders will be looking for as they scan your essays and award you points!
The Fourth Amendment
The Fourth Amendment prohibition against unreasonable searches and seizures has also appeared with frequency on Criminal Procedure MEE questions. We recommend you review:
- When the Fourth Amendment applies
- Standing (a person must have a reasonable expectation of privacy)
- Warrant requirements
- Warrant exceptions
These are very broad topics but it is necessary to have a good grasp on them for both MEE and MBE purposes!
3. Learn basic definitions to introduce each topic
There are some introductions that the grader will expect to see for certain topics. It is helpful to be aware of these (and memorize the basic ideas in them) so you can state them if you see a topic tested. For example:
- “Malice aforethought” in murder: “Malice aforethought” is a term of art, and it encompasses several different mental states. In most jurisdictions, the malice aforethought requirement is satisfied if the defendant acted with intent to kill, with the knowledge that his acts would kill, with intent to inflict great bodily harm, or with reckless disregard of an extreme risk to human life (a depraved heart).
- Miranda: Law enforcement officers are required to read Miranda warnings to a suspect when the suspect is subjected to an in-custody interrogation. If the officers were required to read the warnings and failed to do so, the statements should be suppressed.
- Interrogation: “any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response” from the suspect.
- Custody: a substantial seizure, and is defined as either a formal arrest or “restraint on freedom of movement of the degree associated with a formal arrest.”
- Fourth Amendment: the Fourth Amendment applies to searches or seizures conducted by government agents in areas where the complaining individual has a reasonable expectation of privacy.
Being able to define key concepts will go a long way to build credibility with the grader. They will also help you accurately apply the law and conclude on a given issue. We recommend you highlight other key words or definitions as you study your Criminal Law and Procedure outline.
Some students (especially those that did not take Criminal Law or Procedure in law school) find it helpful to make a separate page of vocabulary terms or “key words” to use in an essay answer. We recommend you try that if you struggle with the vocabulary.
Practice is critical if you want to master Criminal Law and Procedure on the Multistate Essay Exam. As an added bonus, you will probably also see your Criminal Law MBE score improve since Criminal Law is tested on both the MEE and MBE.
Here are some links to (free) Criminal Law and Procedure questions and National Conference of Bar Examiners (NCBE) point sheets. (If you would like to purchase a book of Criminal Law and Procedure Multistate Essay Exam questions and NCBE point sheets from 2005 to the present, check out our MEE books here. You can also see some additional exams on the NCBE website for free here.)
- July 2012 MEE: homicide distinctions
- July 2011 MEE: Fourth and Fifth Amendment
- July 2009 MEE: this covers Criminal Law and Procedure issues
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