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MBE Tip of the Day: Criminal Procedure

MBE DiagnosticMBE 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 Law and Procedure MBE questions on the Multistate Bar Exam. About half of those will be Criminal Procedure questions.

Every few days during bar exam season, we post an MBE tip and trick post. 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.

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  Criminal Procedure answer as well as read more about our MBE tip of the day.

Show Criminal Law MBE question

Criminal Procedure MBE Question

A suspect, an 18-year-old woman, was taken into custody. The suspect was put into an interrogation room and left there for five hours without food, water, or any permission to contact anyone outside of the room. After five hours, police officers came in, gave her a form, and told her to “sign here.” The form stated that she was voluntarily waiving her right to a lawyer and her right to remain silent. The woman did not read the form and did not know what it said. Nonetheless, she signed the form. The police then asked her, “Did you kill your ex-boyfriend?” The woman broke down in tears, said she killed her ex-boyfriend, and that the gun she used was hidden in a hole that she had dug in the rural mountains about three hours from her house. She gave the police officers the exact location of the gun. The gun was later retrieved. The prosecution wants to admit the gun into evidence.

What is the woman’s best argument that it should be excluded from evidence?

(A) That the interrogation violated the 5th Amendment.
(B) That the interrogation violated the 6th Amendment.
(C) That the interrogation violated the 14th Amendment.
(D) That the interrogation violated her right against self-incrimination.

 

Subject:

Legal Issue:

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!)

Conclusion:

Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.

Show Answer to Criminal Procedure MBE question

Answer to Criminal Procedure MBE Question

Common Mistake: Students forget when the exclusionary rule applies – and when it does not!

Subject:  Criminal Procedure

Legal Issue: 
What is the woman’s best argument to keep the gun out of evidence?

Legal Rule and Analysis: 
In order for the woman to successfully keep the gun out of evidence, the exclusionary rule must apply. The exclusionary rule applies when police officers violate one’s 4th amendment search and seizure rights (not applicable), 6th Amendment right to counsel (not applicable as she was not formally charged), or 14th Amendment due process rights (e.g. if the police coerce the suspect into confessing). The only way argument that the woman has is that they violated her 14th Amendment rights. Note: This may not be a great argument, but it is her best argument, especially given the other answer choices.

Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect: The answer is (C). (B) is incorrect. The Sixth Amendment right to counsel is not at issue as no formal charges had been filed. The Sixth Amendment only applies when formal charges are filed. (A) is incorrect. The woman’s Miranda rights did “attach” here as there is clearly a custodial interrogation. And one might want to make the (weak) argument that she did not waive them. (Here she probably did waive them, as any waiver that is “knowing, intelligent, and voluntary” is considered valid, and that is a low bar.) But, we shouldn’t even be thinking about this one, because what she is trying to exclude from evidence is the gun – not the statement!  Even if (A) applied, a violation of Miranda rights does not preclude the physical fruits from being admitted into evidence, it only precludes the confession from being admitted into evidence. So, (A) is not the best answer. (C) is the best answer because there would be an argument that the confession was involuntary and as a result of police coercion (the woman was deprived of food, water, and outside contact for five hours; further, she was relatively young—only 18 years old). Further, a 14th Amendment violation would also exclude the fruits of the confession. This may not be a great argument, but it is her best argument to keep the gun out of evidence. (D) is incorrect as the woman’s Fifth Amendment rights were not violated. Miranda was not violated as explained above. Further, she was not compelled to incriminate herself.

MBE Tip: Pay attention to the call of the question! Circle it. Highlight it. Do whatever you have to do to remind yourself of what the question is actually asking!  Many students think “well how would the confession be kept out?” but that is not the question here! The question here is how the gun will be kept out of evidence! You do not want to lose points because you decide to answer a question that is not even being asked!

Show Summary of Key Takeaways

Key Takeaways for the day:

Takeaway for the Law: The exclusionary rule does not apply to 5th Amendment violations. Rather, it applies to 4th Amendment (search and seizure),  6th Amendment (right to counsel) , and 14th Amendment (due process) violations.

Want to see if you truly understand this takeaway? Try this question!

MBE Tip: Pay attention to the call of the question! Circle it. Highlight it. Do whatever you have to do to remind yourself of what the question is actually asking!  Many students think “well how would the confession be kept out?” but that is not the question here! The question here is how the gun will be kept out of evidence! You do not want to lose points because you decide to answer a question that is not even being asked!  

Want to see Past MBE Tip of the Day posts? 

If you would like to see “MBE tip of the day” posts from prior days, please check out all of our past MBE tip of the day archives here! We have several of them and we list them by subject!

Looking for additional MBE help? If you are looking for MBE help, read our 10 expert MBE tips here. Check out our step-by-step guide to improving your MBE score, please review this post for an overview of tips. If you would like to have the next MBE tip emailed to you when we come out with another one, please fill out the form below.

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