MBE Strategies Blog Post Series: Welcome to our MBE tips and tricks blog post series — this post focuses on a Criminal Procedure MBE tip.
You will see 25 scored Criminal Procedure MBE questions on the Multistate Bar Exam.
Note that we have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each post covers one highly-tested area of substantive law as well as an important MBE strategy. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page.
Do your best to answer this Criminal Procedure MBE 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, uncover the answer as well as read more about our MBE tip of the day.
Criminal Procedure MBE Question
A man suspected of robbing a jewelry store was arrested after police found that he matched the description of the robber given by the jewelry store owner. The man was placed in a lineup with other males. No lawyer was present. The owner of the jewelry store was asked to pick the person that robbed the jewelry store out of the lineup. The owner quickly identified the man as the jewelry store robber. The man was then charged with robbery.
The man was approximately 5’8” in height, had short brown hair, and weighed 170 pounds. The man alleged that the others in the lineup did not match the description given by the jewelry store owner, and did not look enough like him.
What is the man’s best argument for suppression of the identification?
(A) The lineup violated his Fifth Amendment Privilege against Self-Incrimination.
(B) The lineup violated his Fifth Amendment Right to Counsel.
(C) The lineup violated his Sixth Amendment Right to Counsel.
(D) The lineup violated the Fourteenth Amendment Due Process Clause.
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Answer to the Criminal Procedure MBE Question
Subject: Criminal Procedure
Legal Issue: What is the man’s best argument for suppression of identification?
Legal Rule and Analysis: One of the best arguments to challenge a pre-charge line-up is that it violates the Fourteenth Amendment Due Process Clause Under the Fourteenth Amendment Due Process Clause, if a lineup is unnecessarily suggestive so as to create a substantial likelihood of misidentification then the defendant has a good argument for exclusion of the identification.
Conclusion: The answer is (D)
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. (D) is the best answer.
(A) is incorrect. The Fifth Amendment Privilege Against Self-Incrimination states that one does not have to be a witness against oneself. However, this means that one does not need to testify against oneself. One still must participate in lineups as this does not implicate the privilege against self-incrimination. Thus, (A) is not the best answer.
(B) is incorrect. The Fifth Amendment Right to Counsel attaches when there is a “custodial interrogation.” One is not being interrogated at a lineup so this right does not attach. Thus, (B) is not the best answer.
(C) is incorrect. The Sixth Amendment Right to Counsel attaches when the defendant is formally charged. This right does not attach upon arrest. Here, the man was picked out of the lineup pre-charge, thus his Sixth Amendment right did not attach. Thus, (C) is not the best answer.
Criminal Procedure MBE Tip: If you mix up these Amendments, make a chart of them. Being able to recognize when the Fifth, Sixth, and Fourteenth Amendment attach and when evidence is excluded as a result of their violation can go a long way in helping you answer these nuanced MBE questions correctly.
Key Takeaways and MBE tips for the day
Takeaway for the Law: Under the Fourteenth Amendment Due Process Clause, if a lineup is unnecessarily suggestive so as to create a substantial likelihood of misidentification then the defendant has a good argument for exclusion of the identification.
MBE Tip: If you mix up these Amendments, make a chart of them. Being able to recognize when the Fifth, Sixth, and Fourteenth Amendment attach and when evidence is excluded as a result of their violation can go a long way in helping you answer these nuanced MBE questions correctly.
Want to see Past MBE Tip of the Day Posts?
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