How to Approach Criminal Procedure Questions on the MBE

When bar exam season is in full swing, you spend countless waking hours mulling over multiple choice questions for the Multistate Bar Exam. And for good reason. The questions are notoriously difficult, and you have to get a passing score on the MBE in your jurisdiction to be admitted to the bar. The MBE tests Civil Procedure, Constitutional Law, Contracts, Evidence, Real Property, Torts, and Criminal Law & Procedure.

Although the bar examiners have lumped Criminal Law and Criminal Procedure into one category, these question types are distinct and require their own approaches. While you may approach a Criminal Law question in a similar manner to a Torts question, Criminal Procedure questions are more akin to a Constitutional Law or Civil Procedure analysis.

Of the 175 scored questions on the MBE, 25 of those questions fall into the Criminal Law & Procedure category. Of those 25 questions, 12-13 of them will cover Criminal Procedure, and we can break this down even further. The 12-13 Criminal Procedure questions will cover a number of topics, including search and seizure, the exclusionary rule, right to counsel, and confessions and privileges.

Even though Criminal Procedure is a broad topic, you can still adopt an overarching approach to answer these questions. This article provides tips on how to develop that overarching approach and how to tackle those tricky search and seizure questions.

1. Your Overarching Approach to MBE Criminal Procedure Questions

We’ve stated this before when discussing how to tackle other MBE questions, but we’ll say it here again: approach MBE questions, including Criminal Procedure questions, in the same way you would an essay. That means identifying the issue, honing in on the rule, applying the rule to the facts, and drawing a conclusion even before you hit the answer choices.

In Criminal Procedure questions, as you’ll likely find in Constitutional Law questions, one of the most difficult parts is narrowing in on the specific issue that the question is meant to test you on. Luckily, in Criminal Procedure questions, you can often use the call of the question for guidance. For example, some Criminal Procedure questions have asked:

• Under what circumstances, if any, may the grand jury compel production of the diary over the suspect’s assertion of his Fifth Amendment privilege?
• How should the trial judge instruct the jury regarding the burden of proof on the issue of consent?

Once you’ve identified the issue, isolate the even narrower issue being tested, and identify the corresponding rule. This will become easier as you become more familiar with and memorize the rules in this subject area. Once you’ve done this, the application part of your analysis becomes easy.

Finally, before you read the answer choices, draw your own conclusion. Doing this will make sure you don’t get flustered when you see what appears to be a compelling answer choice. Stick with your initial conclusion, select the answer, and then move on to the next question.

2. Tackling the Search and Seizure Questions on the MBE

Search and seizure questions form a significant part of the Criminal Procedure MBE questions you’ll encounter on exam day. Because of this, knowing the law in this area can help you bump up your MBE score.

Let’s start by talking about your approach for the seizure of a person. First, determine if there even is a seizure. A seizure occurs when a reasonable person would feel that he or she is not free to leave or terminate the encounter. Second, determine the type of seizure: arrest, Terry stop, or automobile stop. Based on the type of stop, you’ll need to apply the relevant rules. Remember that for arrests, an arrest may occur without a warrant unless the arrest takes place at the defendant’s home. For warrantless arrests, police need probable cause (trustworthy facts that lead a reasonable person to believe a crime has occurred). Terry stops, also known as investigatory detention, require reasonable suspicion of illegal activity. Officers can frisk the detained person for weapons only if the officer has a reason to believe the detained person is armed and dangerous. Finally, officers may stop an automobile with only reasonable suspicion.

If you’re tackling an evidentiary search and seizure question, you’ll take a slightly different approach. First, ask yourself who seized the evidence; remember, the Fourth Amendment applies only if the government seized the evidence. Second, determine if the defendant had a reasonable expectation of privacy in the area searched. Next, assess whether there was a valid warrant. A valid warrant requires probable cause; absent probable cause, determine if the good faith exception otherwise applies.

Finally, if there is no valid warrant, run through the key warrant exceptions: search incident to a lawful arrest; the automobile exception; plain view; consent; Terry stop and frisk; and hot pursuit. To successfully answer evidentiary search and seizure questions, make sure you’ve got these exceptions down.

Remember: Practice Makes Perfect

Although the MBE can be daunting, following a structured approach to tackling the MBE questions will ensure that you can handle them come exam day. And when it comes to the MBE, practice makes perfect.