Introduction to Criminal Procedure

Welcome to our lectures on criminal procedure. We have already talked about the substance of the criminal law, meaning what are the specific things that are illegal? Now we're going to talk about criminal procedure, which is basically the rules that govern the way in which criminal investigations and trial occur. What are the rules that prosecutors, police officers, trial judges, and so forth have to follow when they are investigating crime and adjudicating crime against defendants?

This topic is one that is going to test exclusively federal constitutional law. Criminal procedure is governed by a number of provisions in the Constitution and the Bill of Rights in particular. That is going to be our focus in this course. There are other rules that govern criminal procedure such as state law, but those are not tested on the MBE.

Key Criminal Procedure Topics on the MBE

Let me give you an overview of what we're going to talk about. Now, keep in mind criminal procedure questions are going to be half of the criminal law and procedure section on the MBE, the other half being the substantive criminal law that we just studied. Within the half that is criminal procedure, the topics include Fourth Amendment, which governs search and seizure. It's going to include confessions and particularly issues that arise under the Fifth Amendment Miranda doctrine. Those two issues, Fourth Amendment, search and seizure questions, and confessions are going to be the biggest topics that are most likely to be tested.

There's also a pretty big grab bag of other criminal procedure issues that you also are expected to know, including the rules governing pretrial identification, the rules governing cruel and unusual punishment, how grand juries work, the rules governing pretrial detention, certain kinds of constitutional rights that apply in terms of guaranteeing fair trials, as well as the rules that govern the taking of guilty pleas and the plea bargaining process, as well as the restrictions on punishment that the double jeopardy clause imposes and the limits on forcing defendants to testify under the Fifth Amendment privilege against self-incrimination.

Now, criminal procedure is an area where the law changes a lot. It changes a lot more rapidly than most other areas like tort law, criminal law, property. The only area that changes quite as rapidly as this one, I would say, is constitutional law. Luckily, the MBE typically doesn't test for really recent changes, such as those that are less than a year old. If the law has changed particularly recently, the MBE will typically credit both answers, the newly correct rule as well as the old rule that was correct until the rule was changed. So don't worry about that too much.

Criminal Procedure Course Overview

In terms of the structure of our lessons, we're going to start out with the Fourth Amendment. That's actually going to be the bulk of what we're going to talk about. There's a number of lessons there where we're going to really dive into the specific Fourth Amendment rules. There's a lot to learn there. It's important that you learn it all because of how frequently those questions are tested. Then we're going to go through the remaining issues. We're going to spend a little bit more time on confessions than we do on most of the other issues, but no, there's no issue on which we're going to spend as much time as we do for the Fourth Amendment.

Now, we're normally expecting that most students will just go through the lessons in order, starting with substantive criminal law, go through all those and then do the criminal procedure questions, but because the two topics are so distinct, you don't actually have to do that. If you wanted to go in the opposite order, I don't think you would really miss out on anything. If you feel like you really, really know one of these areas already, you could just do one or the other. I probably would recommend you listen to both sets of lessons just because you never know. Sometimes the law as it's tested on the bar is going to be a little different than the law you might have learned in your law school classes.