You will see 25 scored Criminal Law and Procedure MBE questions on the Multistate Bar Exam. About half of those will be Criminal Law questions and about half will be Criminal Procedure MBE questions. We will be posting a Multistate Bar Exam question once every couple days along with an answer. These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each post will cover one highly-tested area of substantive law as well as an important MBE strategy.
Today, we will review a Criminal Procedure MBE question that covers an issue that many students get confused about. Do your best to answer this question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue? What is the rule and analysis? What is the conclusion? Try to answer these beginning questions before even reading the answer choices. Then, you can uncover the Criminal Procedure MBE answer as well as read more about our MBE strategy of the day.
Criminal Procedure MBE Question:
A man was taken to a police station for questioning after his girlfriend disappeared. The man was not given Miranda warnings. After a few minutes of questioning by a police officer, the man confessed to murdering his girlfriend and told the police officer that he threw the gun that he used to shoot his girlfriend in a swamp, which was located several miles from the city. After an intensive search of the swamp over a period of several weeks, the police found the gun. The man is charged with first-degree murder. The prosecutor plans to use the gun as evidence against the man at trial.
The man argues that the gun should be suppressed at trial. Will he prevail?
(A) Yes, because the man was not given Miranda warnings.
(B) Yes, because the interrogation violated the man’s due process rights.
(C) No, because the exclusionary rule will not serve to exclude the gun from evidence.
(D) No, pursuant to the “inevitable discovery” exception to the exclusionary rule.
Legal Rule and Analysis: (If you need to look at your outline to find the legal rule, feel free to use it when you have not yet memorized the subject. Using your outline will help you actively learn and memorize your outline!)
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
Answer to the Criminal Procedure MBE Question:
Common mistake: Students forget when the exclusionary rule applies.
Subject: Criminal Procedure
Legal Issue: May the prosecutor admit the gun into evidence?
Legal Rule and Analysis: Yes, unless the exclusionary rule prevents it from coming in. In this case, the man was not given Miranda warnings despite the fact that he was in custody and being interrogated. This violated the man’s Fifth Amendment right against self-incrimination since, pursuant to the Fifth Amendment, the man should have received Miranda warnings as soon as the custodial interrogation began. However, (assuming that there is no Fourteenth Amendment Due Process Clause violation), a violation of the Fifth Amendment right against self-incrimination only suppresses statements made, not physical “fruits” of the statement. Thus, the man’s confession would not be admitted into evidence. However, the gun could be admitted into evidence.
The Sixth Amendment Right to Counsel is not violated because he was not yet formally charged with a crime; thus the Sixth Amendment Right to Counsel did not yet attach.
The Fourteenth Amendment Due Process Clause is not violated because there are no circumstances suggesting that the interrogation was involuntary. The fact pattern states that after only a few minutes of questioning, he told the police officer where the gun was. (Note: if the Fourteenth Amendment was violated, then neither the confession nor the gun would be admitted.)
(Remember the exclusionary rule applies when there is a Fourth Amendment violation. It does not apply to “physical fruits” when there is a Fifth Amendment violation. Here there is no unlawful search and seizure; rather, the confession was obtained in an unlawful manner)
Conclusion: (C) matches the rationale presented above.
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect: (A) is incorrect because a violation of Miranda requires suppression of statements made in violation, but not physical fruits of those statements. (B) contradicts the facts. There is no due process violation because there is nothing showing that there was police coercion that overcame the suspect’s will. The man confessed after just a few minutes. (D) is incorrect because the inevitable discovery rule isn’t needed in this case. Further, it contradicts the facts, which state, “[a]fter an intensive search of the swamp over a period of several weeks, the police found the gun.” The gun is likely not something they would have found otherwise!
MBE Tip: What if I am always in between two answers?
You may have found yourself going back and forth between two or more answer choices when answering this question. Here are a few strategies to try if you find yourself doing that on the real MBE:
- Stop staring at the answer choices. Go back to the fact pattern and see if there are any key facts that help you accurately answer the question. This tip in and of itself has helped a lot of students choose the right answer! We are not used to going back to the fact pattern, but it can help immensely.
- Ask yourself “What is the precise legal issue being tested?” If you can figure out the precise legal issue, you can identify the answer choice that best recognizes that legal issue.
- If they both answer choices seem truly equally right, they may both be wrong! Keep this in mind if you really cannot choose between two!
Key Takeaways for the day:
Takeaway for the Law: A violation of the 5th Amendment right against self-incrimination only suppresses statements made, not physical “fruits” of the statement.
MBE Tip: If you are between two answer choices, (1) go back to the fact pattern to see if there are any “key” facts that you missed, (2) Try to nail down the precise legal issue being tested so that you can find an answer choice rationale that matches that precise legal issue, and (3) remember if both choices seem equally right, they may both be wrong!
If you would like to see “MBE tip of the day” posts from prior days, please click on the links below:
- MBE Strategies: Day 1 – Torts (negligence)–and how to approach MBE questions.
- MBE Strategies: Day 2 – Criminal Law (homicide) — and learning through “wrong” answers.
- MBE Strategies: Day 3 — Evidence (hearsay) –and memorizing the details!
- MBE Strategies: Day 4 – Contracts and Sales – and spending time on the subjects that are difficult for you.
- MBE Strategies: Day 5 – Real Property (future interests) – and spending time on the highly-tested areas of law.
- MBE Strategies: Day 6 – Civil Procedure (summary judgment) – and eliminating incorrect answers.
- MBE Strategies: Day 7: Constitutional Law (political question, standing) – and how to answer a question correctly when you are in between two choices.
- MBE Strategies: Day 8: Evidence (hearsay, best evidence rule) – and why it is good to fine-tune your knowledge of the “red herring” areas of the law.
- MBE Strategies: Day 9: Torts (conversion) – and where to get actual released MBE questions!
- MBE Strategies: Day 10: Criminal Procedure (5th Amendment) – and how to pick between two answer choices.
- MBE Strategies: Day 11: Contracts (contract formation) – and what to do if you “overthink” questions.
- MBE Strategies: Day 12: Real Property (deed delivery) – and jotting out the fact pattern.
- MBE Strategies: Day 13: Civil Procedure (jurisdiction) – and “bringing it all together”.
- MBE Strategies: Day 14: Constitutional Law (taxing and spending) – and why to answer more Constitutional Law and Civil Procedure questions.
- MBE Strategies: Day 15: Constitutional Law (powers of congress) – and how to get better at Constitutional law questions.
- MBE Strategies: Day 16: Criminal Procedure (exclusionary rule) – and paying attention to the call of the question.
- MBE Strategies: Day 17: Evidence (character evidence) – and how to tell a civil case from a criminal case (and why it matters!).
- MBE Strategies: Day 18: Real Property (joint tenancy) – and how to get more Real Property questions right!
- MBE Strategies: Day 19: Civil Procedure (JAAMOL) – and how to learn Civil Procedure.
- MBE Strategies: Day 20: Torts (joint and several liability) – and tips on MBE default rules.
- MBE Strategies: Day 21: Evidence (hearsay) – and the importance of memorizing the law!
- MBE Strategies: Day 22: Contracts (formation) – and why you should not ignore the written portion of the bar exam!
- MBE Strategies: Day 23: Criminal Law and Procedure (and the importance of mens rea).
- MBE Strategies: Day 24: Constitutional Law (equal protection) – and the importance of writing incorrect answers down!
- MBE Strategies: Day 25: Civil Procedure (impleader) – and free released NCBE questions!
- MBE Strategies: Day 26: Real Property (future interests) – and learning the highly tested MBE topics.
- MBE Strategies: Day 27: Torts (intentional torts) – and the importance of learning rule statements.
- MBE Strategies: Day 28: Evidence (impeachment) – and how to keep impeachment, character evidence, etc. straight!
- MBE Strategies: Day 29: Criminal Procedure (line-ups) – and how charts can help you keep the 5th, 6th, and 14th Amendment straight!
- MBE Strategies: Day 30: Contracts (revocation of acceptance of goods) – and how finding patterns in your answer sheet can improve your score.
- MBE Strategies: Day 31: Constitutional Law (public v. private forum) – and last-minute MBE tips.
- MBE Strategies: Day 32: Torts (premises liability) – and eliminating incorrect statements of law.
- MBE Strategies: Day 33: Criminal Law (robbery) – and knowing your state vs. MBE distinctions.
- MBE Strategies: Day 34: Real Property (priority and recording acts) – and writing answers to the questions.
- MBE Strategies: Day 35: Torts (comparative negligence, joint and several liability) – and learning the theories behind the laws.
- MBE Strategies: Day 36: Contracts and Sales (recovering the purchase price) – and creating a timeline of events when answering MBE questions.
- MBE Strategies: Day 37: Constitutional Law (1st Amendment) – and making a diagram as you study.
- MBE Strategies: Day 38: Evidence (extrinsic evidence) – and learning the definitions of basic legal terms.
- MBE Strategies: Day 39: Civil Procedure (motion to dismiss) – and creating a timeline of the judicial process while studying.
- MBE Strategies: Day 40: Real Property (present and future interests) – and the importance of grammar.
- MBE Strategies: Day 41: Torts (battery) – and paying close attention to the call of the question.
- MBE Strategies: Day 42: Criminal Procedure (4th Amendment) – and why you shouldn’t skip straight to the narrow rules.
- MBE Strategies: Day 43: Criminal Law (burglary) – and why you need to know the elements of crimes!
- MBE Strategies: Day 44: Contracts and Sales (damages) – and answering the question in your head first.
- MBE Strategies: Day 45: Constitutional Law (interstate commerce and equal protection) – and paying attention to which entity is attempting to act.
- MBE Strategies: Day 46: Evidence (impeachment) — and how to identify the applicable evidentiary rule.
- MBE Strategies: Day 47: Civil Procedure (full faith and credit clause and preclusion) – and newly released NCBE civil procedure questions.
- MBE Strategies: Day 48: Civil Procedure (removal) – and understanding the policies behind the rules.
- MBE Strategies: Day 49: Real Property (eviction) – and the importance of paying attention to details!
- MBE Strategies: Day 50: Torts (trespass) – and the importance of memorizing the elements and categories of torts.
- MBE Strategies: Day 51: Evidence (lay witness testimony) – and avoiding distractions.
- MBE Strategies: Day 52: Civil Procedure (automatic disclosures) – and eliminating answer choices.
- MBE Strategies: Day 53: Torts (duty of a premises possessor) – and to not feel too sorry for vulnerable plaintiffs!
- MBE Strategies: Day 54: Real Property (equitable servitudes) – and finding differences in concepts.
- MBE Strategies: Day 55: Civil Procedure a bonus FIVE MBE tips!
- MBE Strategies Day 56: Constitutional Law (equal protection) – and memorizing the standards of review.
- MBE Strategies Day 57: Contracts (installment contracts) – and learning the nuances of the law.
- MBE Strategies Day 58: Criminal Procedure (5th Amendment) – and understanding the scope of constitutional rights.
- MBE Strategies Day 59: Civil Procedure (exception to final judgment rule) – and understanding the rules and their exceptions.
- MBE Strategies Day 60: Evidence (which law applies to privileges in federal court) – and the importance of knowing the law.
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