So let's look at an actual answer to this MEE question from July 2019, and let's look at one from New York. Keep in mind that the graders in New York found this essay above average, but you shouldn't necessarily consider it an ideal perfect model essay necessarily to emulate on the exam. But if you do one that's as good as this, you're probably going to pass the bar. This isn't perfect, but it's definitely, definitely, definitely good enough for passing and probably more than passing.

So I want to start with some general comments about how the writer chose to structure this essay. First, the good news: the essay begins with the clear conclusion to the ultimate question that the bar examiners asked. The opening sentence reads, "The court did not err in denying the motion to suppress on all three grounds raised by defense counsel."

General Comments

This is great. We've got a prompt that asks us an overarching question, and the writer immediately jumps in to answer that question. Even better, she jumps in with the correct answer, so she's going to earn a few points right off the bat. Unfortunately, in terms of structure, that's the end of the good news. I want you to scroll down and look at the rest of the essay.

There are three long paragraphs right under that initial conclusion, and then there are three short numbered subsections, each of which addresses one of the issues that was raised in the motion to suppress. If you look a little bit more closely, you'll see that the writer has used the first part of the essay to collect a bunch of rules about Miranda and about the Sixth Amendment right to counsel, before digging into the meat of the issues.

She states a lot of the rules correctly, but there are some serious disadvantages to this approach. The most important problem for our purposes is that it makes it harder for the people who are grading the essay to do their jobs. The bar examiners basically gave test takers an outline for their essays by using bullet points to list the three issues they wanted them to address.

If you look at the official grading rubric, you'll see it's divided up the same way. The rubric also tells you that each of the three issues is worth roughly the same amount. The first one is worth 40% and the other two are worth 30% each. So the graders were probably expecting to see essays that were structured like the question, addressing issue 1, then issue 2, then issue 3.

That way, they could go through each numbered section and tick off the points the writer earned for each part of the analysis. This test taker ignored that hint. She started out with all these general rules and then did just one-paragraph applications for each issue. That structure doesn't match the way the question was written and it doesn't match the grading rubric either.

I understand the temptation to put all these rules up front. I think the writer thought, well, Miranda applies to all three of these issues, so it'll be simpler if I get the basic rules out of the way, but that means graders have to jump back and forth between the opening section and the subsections as they grade, looking for the points they want to see on each issue.

And that creates the risk the writer is going to wind up getting fewer points for the essay in the end, because the information is a little bit harder to find. The takeaway: remember that the issues at the end of every MEE question tell you how to structure your essay. Be sure to take that hint. And so if I were writing this essay, I would include a bunch of the same content this writer provided, but I would organize it differently.

I would start with the overarching conclusion, the court did not err, and then I would start going through each of the three issues, one by one. To make sure my points were clear, I would structure each section using C-R-A-C, CRAC: conclusion, rule, application, conclusion.

For example, my next sentence would be my conclusion for issue number 1, "The court did not err in denying the motion to suppress based on the detective's interrogation of the woman on March 15th, after she invoked her right to counsel under Miranda on February 4th, because there was a 14-day break in Miranda custody." And then I would divide up all the rules about Miranda that this writer listed in her initial section.

In each subsection, I would talk about whichever rules apply to that issue and use them to analyze the facts. Most of the rules you need to summarize are only going to be specific to one issue. You might have to do a little bit of repetition, but I think that's worth it because it's just going to make this question a lot easier to grade.

Then at the end of each subsection, I'd circle back to the conclusion on that issue before I moved on to the next one. With that general advice in mind, let's walk through this sample answer and look at the writer's response in more detail.

There are a few lessons to draw from this opening section that isn't tied to any of the three issues in the question. The first lesson is that you should resist the urge to tell the bar examiners everything you know about a topic in an MEE essay. Really confine yourself to the rules that the question is focused on. Your time is limited, and so is the grader's time. You want to show that you can narrow the universe of legal rules to what's most relevant.

Opening Section

So this writer leads off the second paragraph with the statement that the Fifth Amendment of the US Constitution, as applied to the states through the Fourteenth Amendment, establishes the right not to incriminate oneself. That's all correct, but it drills further down to first principles than the bar examiners really care about in this question. Instead of wasting time and space in something so generic, save time to dig deeper into the specifics of the rules governing each issue. And those are the Miranda rules.

Then there's an entire paragraph on the Sixth Amendment right to counsel. But remember the prompts. The prompts are all about Miranda. Yes, there are some facts here that are designed to make you think of the Sixth Amendment, like how long she's in jail for, but that's bait because none of it matters, because this isn't a Sixth Amendment question.

You don't get points on the MEE for addressing issues that aren't raised. Quickly note that this is not a Sixth Amendment question if you'd like, maybe with one sentence, and move on, but you don't even really need to do that.

Also, be aware of getting bogged down in stating rule after rule like this writer's second paragraph does. It gets tedious and the grader's eyes will start to glaze over. Following CRAC will help you avoid this problem. After a rule or two, stop and apply the law to your fact pattern. This strategy will ensure you're really engaging with the question instead of just downloading whatever you memorized about the topic for class from your brain and onto the page.

Finally, be careful about terminology. The last paragraph of this opening section says, "Any rights to counsel the woman may have had would fall under the Fifth Amendment. On both February 4 and March 15, her Fifth Amendment rights would have been invoked as she was under custodial interrogation." Here, the writer has gotten a little confused and is not using the word invoked in the way we use it in Miranda doctrine.

You invoke your Miranda rights by saying, "I want a lawyer." And so I think what the writer's trying to say is, "On February 4th and March 15th, Miranda would be applicable because our suspect was in custody for Miranda purposes." And phrased in that way, the statement is probably correct.

She was brought by a detective to an interrogation room, so she's probably in Miranda custody, but the test is whether you've been formally arrested or are under the functional equivalent of a formal arrest. And if you're a prisoner who is brought by a detective to an interrogation room, that could be the equivalent of a formal arrest if you're not allowed to leave. But we don't actually know for certain she wasn't allowed to leave.

So there is an argument that this isn't Miranda custody for that reason, but ultimately, the way the question works out, it's not going to really matter. And so we can assume for purposes of argument that she is in Miranda custody. And so I might've glossed over that issue a little differently than the exam writer did.

So, after all the extraneous discussions and the lists of rules, we've reached the end of the first section with the restatement of the overarching issue: did the detective violate the woman's Miranda rights? There's been lots of windup, but no progress towards the answer.

If the writer had just jumped straight into the individual grounds for the motion to suppress, we'd be in a much better place. So let's look at the writer's discussion of those grounds and see what she did well and what she could have done better.

Start with the first issue, the February 4th invocation. The writer's discussion of the first issue would have been stronger if it had followed CRAC. Instead of starting with a C, a conclusion, it restates the issue before coming to a conclusion. I would say, "There was no problem with interrogating the woman on March 15th after she invoked her Miranda right to counsel on February 4th, because there was a 14-day break in Miranda custody."

Issue #1 (Feb 4 Invocation)

And that's when I would get into some of the rules that are in the second paragraph of the sample essay. There, I would explain that Miranda applies to custodial interrogation. I would either say, "We can assume that there's custody here," or I would reach the conclusion that there's custody. Either one is probably going to be fine for our purposes.

I would explain what's supposed to happen after someone invokes the right to counsel. I might address what counts as an invocation of the right to counsel and that if the defendant invokes the right to counsel, interrogation must cease. And I would note that those rules were honored on February 4th.

Then, in a new paragraph, I would get into the fact that the detective comes back on March 15th. I'd address some of the rules from that earlier paragraph that are specific to this issue, like the 14-day break in Miranda custody, and the difference between Miranda custody and state custody, such as being in prison. The writer gets to that point, but you really have to jump back and forth between sections to find it, and the R in CRAC is pretty much all over the place.

I also want to touch on a couple of specific details from this section. The essay says, "Although the woman was released back to her cell and was in that sense still in the custody of the state, she was not in custody for purposes of her Fifth Amendment right when under custodial interrogation." I would probably just say she was not in custody for Miranda purposes.

The reason the writer keeps talking about the Fifth Amendment is to show she hasn't confused the Fifth Amendment with the Sixth Amendment right to counsel. But again, we weren't asked about the Sixth Amendment, and while Miranda is based on the Fifth Amendment, this is specifically a Miranda question. So let's just keep it simple and just talk about Miranda.

Finally, the section notes it was more than 14 days later. He was therefore entitled to interrogate her again if he gave her new Miranda warnings, which he did. As a result, the detective did not violate the woman's Miranda rights for interrogating her on March 15th. This is an accurate conclusion, but I would just frame it more concisely in one sentence instead of two. The trial court did not err in denying the motion to suppress on the ground that, and so on, and then summarize the conclusion.

Moving on to subpart 2, the same CRAC advice applies. Again, we should lead with our conclusion. Let's say, "Second, the trial court did not err by denying the motion to suppress on the grounds that the detective incorrectly conveyed to the woman her Miranda right to counsel by his statements on March 15th." And then we can get into any specific rules that we have.

Issue #2 (“Incorrectly conveyed” March 15)

Now, you could be tempted to go down a rabbit hole by discussing whether she's actually in Miranda custody, given the confusion we talked about earlier, about whether she was free to return to her cell or not, was this function equivalent to a formal arrest, but you haven't been asked that.

The question is, did the statements he provided adequately summarize the warnings? And you don't need to resolve the custody question to answer that question. I would just say, "Precise language isn't required so long as the statements adequately summarize the rights and don't mislead the suspect." That's a point the author made in the opening section of the essay, but should have been made specifically in this subsection.

Then I would go chronologically through the detective's statements, which is something this sample essay starts to do, but doesn't quite finish. First, the detective gave the warnings again, we're told that briefly in the fact pattern, but that means that whole first block quote gets repeated.

I would go through those and just quickly say these conveyed the substance of the Miranda rights, and in particular, they conveyed the substance of the Miranda right to counsel, because that's really the right we're concerned about. The question isn't, did it convey all of the Miranda rights? The question is, did it convey to the woman her Miranda right to counsel, and it did.

Then there's the detective's response when the woman asked what happens if she requests a lawyer. The writer of this essay dealt with this issue well. She quoted the fact pattern as stating that the detective accurately characterized the procedure for appointing counsel and noted that the response didn't undermine what had been said previously.

The writer also makes a really good point that's worth mentioning. The woman seems to confirm that she understands her right to have counsel present when she says, "I might need a lawyer." That's an additional fact we can actually use to say, well, he must have conveyed the right information to her on March 15th. So that's a helpful observation. Nicely done.

Then finally, I would address the detective's third statement, where he responds to her saying "I might need a lawyer" with "That's your call." The sample essay doesn't discuss this statement, but since the question tells us to look at all the detective's statements, I would mention it briefly for completeness' sake.

And of course, "That's your call" doesn't undermine anything that was said before, and it was correct. And so the writer correctly ends by restating their conclusion, "The detective therefore did not violate the woman's right to counsel by statements on March 15th." Very clear, very to the point, makes it easy for the grader.

Finally, we have the part about interrogating the woman on March 15th after she had allegedly invoked her Miranda right to counsel on March 15th. The writer did a nice job of identifying that there are really two issues here: whether there was an invocation of the right to counsel, and whether there was a proper waiver of the right to counsel.

Issue #3 (March 15 Invocation)

The writer also reached the correct conclusion that there was no invocation of counsel and there was a proper waiver of the right to counsel. For invocation of counsel, this is the place to discuss the rule that an invocation has to be clear and unequivocal, and that if it's made, all interrogation must cease. If you mentioned this rule in your answer to the first question, I would still quickly repeat it here.

You'll also want to review both of the woman's statements, just like our writer did, her question about what would happen if you requested counsel and her musing that "I might need a lawyer." Neither of those statements is a clear and unequivocal invocation of the right to counsel. They're just clarifying that she's not misled by anything the detective has said.

Then you want to discuss whether the woman properly waived her rights by deciding to answer questions without counsel present. The waiver rules are kind of the flip side of the invocation rules. You can waive basically by speaking, as long as you understand your rights. You don't need a clear and unambiguous waiver. We need a clear and unambiguous invocation.

So she doesn't clearly, unambiguously invoke her right to counsel. And then we have a lot of facts that seem to indicate she understands the right to counsel, and she speaks, and that looks like enough for a waiver.

The essay then concludes, "Therefore, the detective interrogating the woman was proper as she had not invoked her right to counsel but had waived it." That's good, but then I would put an overarching conclusion. We've already put it at the beginning, but it can't hurt. Put it at the end and remind the grader so we got everything right.

Remember the question was, did the trial court err in denying the motion to suppress on all three grounds? So I would say, "In conclusion, because on each of the three issues there was no violation of Miranda, the trial court did not err by denying the motion to suppress on all three grounds." And there you have a very, very clear answer.

We lead with our overarching conclusions and there are more specific conclusions. We end with our specific conclusions at each section, and then we end with our overarching conclusion at the end, and we have our rules in the right place where they belong, with respect to each issue, immediately before we apply those rules to the facts, with respect to each issue.