How to Approach an MEE Criminal Law Question

In this lesson, we're going to talk about general advice for approaching criminal law and procedure questions on the MEE. You should already have listened to the general advice on MEE questions broadly, but before diving into some specific essay questions in the area of criminal law and procedure, I'm going to try to step back and see if there's any general thoughts about this topic that it would be helpful for you to keep in mind as you approach essay questions in this area.

The first thing to stress, and I've stressed this at various points in my lectures, is that criminal law and procedure is really two totally different subjects. It's criminal law, which is about substantive crimes, the definition of things like homicide, larceny, and so forth, and it's criminal procedure, which is about the constitutional rules that govern police investigation and the conduct of criminal trials.

Those two things both involve the criminal process, but in terms of legal doctrine, they actually don't have that much to do with each other. So I'm going to try to give advice that's useful for both criminal law and criminal procedure.

Now, one thing that's going to be helpful with any MEE question is to try and figure out what kind of question it is. They don't tell you what kind of question it is at all, and so you're going to want to figure that out before you get too deep into it.

Step one might be just kind of glancing at the facts and the prompts at the very end of the question, and you should be able to figure out pretty quickly whether something is a criminal law and procedure question. The fact pattern will be talking about a prosecution for murder, or a criminal investigation in a search, or something like that. But you won't necessarily know whether it's a law question or a procedure question. So you want to try to figure that out.

Look at the prompts. Is it asking you whether someone will be convicted of a particular substantive crime? That's a criminal law question. Or is it maybe asking whether a motion to suppress on a constitutional ground will be granted? That's a criminal procedure question. And once you figure that out, you're at least in the ballpark of where you need to be to answer the question.

Watch for Hybrid Criminal-Evidence Questions

Now, another thing that complicates matters a little further is that you're also going to see some questions that combine criminal law and procedure with evidence law, which is a totally different topic. And you're going to need to be able to rely on both topics in order to answer these kinds of questions.

For example, you might see a question that asks whether a certain kind of testimony will be admissible, and the specific prompts will require you to answer a constitutional criminal procedure issue, as well as an issue under the rules of evidence. I'm not your evidence lecturer, so I'm not going to be able to give you any evidence-specific advice. You should instead, for that, listen to the evidence lectures.

But generally, I think you should be able to just combine the lessons you've learned about my area, criminal law and procedure, with those you've learned from evidence and put those together in order to just write an essay that addresses each issue in turn. So you might address the criminal procedure issue in its own little CRAC format, and then you address the evidence issue, and so forth.

Now, one quick thing to keep in mind about these hybrid questions, which you'll see sometimes, you won't necessarily see one every year, but just, it's a thing that they've done sometimes, something to keep in mind is that constitutional criminal procedure rules are binding regardless of what the rules of evidence say.

So even if a piece of testimony is admissible under the rules of evidence, it will still be inadmissible if it violates the defendant's constitutional criminal procedure rights. By the same token, the fact that something doesn't violate the defendant's constitutional rights doesn't mean that the evidence is admissible under the rules of evidence.

So you're really going to want to address those issues specifically and separately when you're asked to do so. And let me just clarify, I'm not saying you always need to address evidence law any time you have a question about the admissibility of some kind of testimony. There are questions that are about the admissibility of testimony that are just criminal procedure questions.

There's also questions that are just evidence questions. But there are some hybrid questions. Try to figure out whether you're in that category, because otherwise you will get very confused, because you'll think the question is asking something that, say, your criminal law and procedure lectures haven't prepared you to answer.

Frequently Tested Topics

So let's just talk a little bit about the kinds of issues we're likely to see on the MEE. There's no guarantee about what kind of issues they will test. They can always throw you a curve ball. So you really do need to prepare everything. That said, we do some things that come up more frequently. And let's talk about criminal law first.

Homicide and Theft

There, we see a lot of homicide questions. You're really going to want to know homicide law well, because there's a good chance it could come up on a criminal law question. And a homicide question can be a little tricky because you're going to have to rely on your knowledge of the common law distinctions between murder and manslaughter, the particular ways in which the common law assigned crimes to one or the other category.

But you're also often going to have to combine that with some statutory interpretation. So you might be given a statute that incorporates the common law distinction between murder and manslaughter, but then it further divides murder and manslaughter into degrees. And you need to figure out which particular degree of murder or manslaughter applies. And in that context, you're still using the common law concepts to figure out, is this murder, and then you're relying on the statute.

In addition to homicide as a topic, we also see the traditional theft crimes such as larceny and false pretenses tested pretty regularly. And beyond that, we also see questions that ask about defenses, such as self-defense. One that the bar examiners seem to be particularly interested in is the insanity defense, so it's going to be helpful for you to understand that heading into the exam.

Miranda and the Fourth Amendment

Now, looking at criminal procedure, we tend to see a lot of questions about the Miranda doctrine. That seems to come up a lot. Sometimes it's combined with questions about other kinds of limits on interrogations, such as the Sixth Amendment right to counsel, as well as due process limits on involuntary confessions.

This is also a place where you could see a combined criminal procedure-evidence hybrid question. So try to understand Miranda well. We see some Fourth Amendment questions regularly about search and seizure. We see fewer questions about the adjudicative side of criminal procedure. There have been occasional questions about sentencing or double jeopardy, but these are less common for whatever reason as compared to questions about police interrogation and search and seizure.

Read Carefully for Issues, Actors, and Timing

Those are the issues we tend to see. Now let's just talk about how you should approach questions. I said earlier, a good first step is to kind of take a quick glance, look at the prompts, figure out what kind of question you have, but it's probably a good idea at the outset to read the prompts a little bit more carefully to figure out not just what area of law we're talking about, but what you're being asked.

Does the question ask whether a motion to suppress should be granted and list specific grounds that seem relevant to the Fourth Amendment? Does the question ask whether a defendant will be convicted of murder or manslaughter? You should be able to have a good sense of exactly what legal issues are being tested by reading the prompts.

You'll say this is a criminal law homicide question. This is a criminal law homicide question with a slice of self-defense. This is a question that combines the Fourth Amendment and the Miranda doctrine, and so forth. You should also look carefully at any language surrounding the prompts that limits the scope of your analysis in some way.

So, for example, you might be told that the jurisdiction follows the common law rules that haven't been changed in modern times. So you're going to know that modern developments in the law, the way that the traditional common law rules have changed, aren't being tested and aren't at issue.

You might also see something that we call a wave-off that tells you to ignore particular issues. If you see that, take it seriously because addressing an issue you have been told to ignore is not going to get you any points at all. And making sure you pay attention to the kind of language surrounding the prompts is really essential to ensuring that you really understand the very specific issue in the specific question you're being asked to address.

After identifying the legal issues, the next thing I want you to do is make sure you understand which possible defendants are implicated by the question. Some questions are easy. There's only one person who's on trial, and so the questions are all going to involve that person's rights. But some questions are more complicated. They might give you a detailed fact pattern involving multiple people, and more than one of them could be a potential defendent.

Look at the prompts, and the prompts will ask you about particular people. And if someone is a defendant or a potential defendant coming out of the fact pattern, you're going to want to pay especially close attention to what they do in the fact pattern. Flag that person, maybe circle their name, and then go back up and read the whole fact pattern with this stuff in mind. You flag the legal issue, so you're going to have some sense of what kinds of facts might be relevant.

So if you have a larceny question, you're going to want to be paying close attention to whether the defendant took something away from another person, what the defendant intended to do, that is, what his mental state was. If it's a Fourth Amendment question, you're going to be wanting to pay really close attention to what exactly the police did, whether they had probable cause, and so on.

Another thing to play close attention to in reading a question is time. And I mean a couple of things by that. So, first, the specific order of events may often be relevant for determining the answer. So, for example, whether someone is entitled to self-defense may depend on what happened before that person used force and whether those events created the right kind of fear of imminent harm in the defendent.

But one way in which the questions can sometimes be a little tricky is that they don't always explain the facts in a perfectly chronological order. So a question might tell you about how a defendant was arrested and then back up a little bit and say, here's what a witness testified, or it'll tell you the facts that led to the arrest. So you're going to want to make sure you understand the sequence of events.

This is a place where maybe taking some notes on the side could be helpful. If you have some scratch paper, maybe even just very, very quickly writing out a little timeline. I'm not talking about spending a lot of time because you really need to be writing most of this time, but just make sure, at least in your head, you understand what happened and in what order.

Now, also regarding time, be really, really attentive to dates in the fact pattern. If you are given specific dates on which particular things happened, that's a reasonably good sign that those dates are going to be relevant to one or more of the prompts.

So a question might turn on whether a prosecution is barred by the statute of limitations, and knowing exactly when the crime happened, exactly when the charges were filed, and the lag between those two things is going to be necessary to answer the question. So if you see a date, make sure to underline it or flag it because there's a good chance it's going to be important.

At this point, you know the relevant actors, you understand what happened in the fact pattern, you understand the specific questions and the legal issues those questions are about, and now it's time to write your answer.

Writing your Answer with CRAC

Now, look at the question prompt one more time. How's it structured? Is there one overarching question such as, "Will the motion to suppress be granted?" Or are there just multiple questions such as, "Will Defendant A be convicted of crime Y? Will Defendant B be convicted of crime Z?" And how exactly the question is phrased and formed will inform how you structure your answer a little bit.

If there's one overarching question, try to answer that at the very beginning of your essay before getting into the specific issues. You might say, "The motion to suppress will likely be denied." And then you do a little CRAC with respect to the specific prompts. "First, the motion will be denied based on the defendant's Miranda argument." And then you do a little CRAC where you've stated your conclusion and you state your rule, your analysis, use your conclusion.

You say, "Second, the motion will be granted on the ground that it violates the defendant's Sixth Amendment right to counsel," or whatever. And then you do another CRAC there where you go through the issue. And then you might sum up at the very end with a quick sentence saying, "Because the police violated the defendant's Sixth Amendment right to counsel, the motion to suppress will be granted."

Now, in terms of structure, you should be pretty familiar with the CRAC format at this point. I think you should not neglect analysis. That's often where the meat of the issue is and where a lot of points are generated, especially for harder issues that the bar examiners see as closer calls.

In terms of the rule statement, one thing to note is that the model answers often talk about how there are two different rules on a criminal law issue. Some jurisdictions follow Rule A, some follow Rule B. And if you know both of those, that's great, but you can do pretty well in terms of points even if you know only one version of the rule.

So, for example, in some states, premeditation for first-degree murder can occur in an instant. In other states, there has to be some opportunity for cool reflection. If you know both rules, you can note that, and you can note in your analysis if the answer depends on which rule is actually followed in that jurisdiction, but if you don't, it's going to be okay.

And then don't forget to conclude at the end of each discussion of each issue. And then, again, provide your overarching conclusion at the end. If you do all this, you're going to be in great shape for any criminal law and procedure question.