MBE Tip of the Day: Criminal Procedure

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 14^th 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!