MBE Tip of the Day: Criminal Law

Answer to the Criminal Law and Procedure MBE Question

Subject: Criminal Law and Procedure

Legal Issue: Pretrial identification procedures

Legal Rule and Analysis: Police often conduct lineups both pre-charge and post-charge.  The distinction is important, as before a suspect has been charged with a crime, the 6^th Amendment right to counsel has not yet attached.  Thus, at a pre-charge lineup, a suspect does not have the constitutional right to an attorney.  Further, nothing in one’s Miranda rights nor the privilege against self-incrimination can help a suspect much in a lineup.  Miranda rights will protect the accused during a custodial interrogation.  A lineup does not rise to that level.  The privilege against self-incrimination protects a person from being compelled to give testimony against themselves.  When a suspect is forced to participate in a lineup, this compulsion does not constitute forced testimony.  The best means to challenge a pre-charge lineup is to argue it violates the suspect’s due process rights.  Pursuant to the due process clause, a lineup must not be so unnecessarily suggestive that it creates a substantial likelihood of irreparable misidentification.

In this case, we are told that the suspect is a tall, thin African American man. There were five other participants in his lineup.  Three were white men, one was a short, heavyset African American man, and one was a short African American woman.  Although the presence of other African Americans make the lineup less suggestive than if all of the other participants in the lineup were white, there are still extreme differences in physical characteristics between the suspect and the other participants.  None of the other African American participants seem to bear any similarities in appearance to the suspect other than skin color.  This gives the suspect a decent argument that the lineup was unnecessarily suggestive.  While this is a high standard to meet, it is the man’s best argument.

Conclusion: The man’s best argument to challenge the lineup is that it violated his due process rights.

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

The answer choice (C) is therefore correct. (A) is incorrect because the man’s constitutional right to counsel, rooted in the 6^th Amendment, does not attach until the man has been charged.  Since the man was not charged with any crime until after the lineup, the man did not have a right to have counsel present at that time. Further, the man’s 5th Amendment right to counsel is not relevant here because a lineup is not considered a custodial interrogation. (B) is incorrect because the police would only be in violation of the man’s properly invocated Miranda rights if they were to resume a custodial interrogation without the presence of an attorney.  As noted above, lineup cannot be considered a custodial interrogation, as although the man may not feel free to leave, the police participated in no conduct that was deliberately designed to invoke an incriminating statement. (D) is incorrect because the privilege against self-incrimination only applies when one is compelled to give testimony against oneself.  Participating in a lineup is not considered testimonial.

MBE Tip: Success on MBE questions requires devoting time to both memorization and application of the law.  Ignoring either step will hurt your score!  It is not enough to just read over your outlines and then jump right into practice questions.  This skips the memorization step.  You need to make sure you have the law memorized so that you can call up the relevant rules on a whim.  Once you have the law memorized, you still need to practice applying it to the facts.  In this question, the rules tested were not very complex, but you needed to be able to recognize the relevant facts (the most important being that the man had not been charged yet) that would allow you to properly apply the rule.