MBE Tip of the Day: Criminal Law
Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on criminal law and procedure.
You will see 25 scored criminal law and procedure MBE questions on the Multistate Bar Exam. In this post, we will review a criminal law and procedure question together. 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 “MBE tip of the day” 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.
MBE Tip of the Day: Criminal Law
MBE Tip of the Day Instructions:
Do your best to answer this criminal law and 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, analysis, and 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.
Show the MBE Question...
Criminal Law and Procedure MBE Question
A tall, thin African American man was recently arrested on suspicion of robbery. The man was led into an interrogation room at the police station and his Miranda rights were administered. The man replied, “I will not be saying anything or participating and I would like to speak to my lawyer.” The officers left the room and the man remained silent in the room for two hours. During that time, a witness was brought into the police station. The officers asked the witness if she would be able to identify the robber in a lineup. She replied that she would. The man was then brought into a room to conduct the lineup. The other participants in the lineup included three white men, a short heavyset African American man, and a short African American woman. The witness identified the arrested man as the robber. No attorney for the man was present at the lineup. The man was then officially charged with robbery. The man wishes to challenge the lineup.
What is the man’s best argument?
(A) The man’s right to counsel was violated.
(B) The man’s Miranda rights were violated.
(C) The man’s due process rights were violated.
(D) Forced participation violated the man’s privilege against self-incrimination.
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Show the Answer to the MBE Question...
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 6th 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 6th 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.
Show Summary of the Two Key Takeaway Points for the Day
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: When challenging a pre-charge lineup, the 6th Amendment right to counsel has not attached yet, but the suspect can still argue that his due process rights have been violated.
MBE Tip: Devote time to practicing both memorization and application to succeed on MBE questions!
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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