MBE Strategies Tip #10 — Criminal Procedure

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!