Criminal Law and Procedure

Welcome to Criminal Law and Procedure. And in this class, we're going to learn the law and provide the knowledge that you need in order to answer the MBE questions that are in the category of Criminal Law and Procedure. And before we dive into that, I think it's going to be helpful to explain to you what exactly that category is because you probably didn't take a class in law school called "Criminal Law and Procedure."

Substantive Criminal Law

Instead, what's more likely is you took a required first-year class called Criminal Law. Not every law school has such a class as a required first-year course, but most do. And that was about substantive criminal law— what are the principles of mens rea and actus reus, interpreting criminal statutes, what are some specific crimes, the law of homicide, and so forth.

Criminal Procedure

And then you might have also taken an upper-level class or two in criminal procedure, which is usually taught as the constitutional rules governing the investigative and adjudicative process— so stuff like the Fourth Amendment, the Miranda doctrine, rules about double jeopardy, rules about fair trials, and so forth. And they're really kind of two separate fields with kind of two different sources of law.

Differentiating the Two Topics

Substantive criminal law is really a creature of state law. You're going to learn the original common law rules, how they've been modified by state law; you might study the Model Penal Code, which is a draft code that sort of influenced the law. And then, in criminal procedure, you're going to be studying federal constitutional rules. The bar teaches these two different topics as if they're just one topic and mushes them together, and you're going to get twenty-five questions on the multistate bar exam about criminal law and procedure.

And there are going to be questions about substantive criminal law and criminal procedure, and it's going to be about half and half. And one thing that makes studying this topic a little tricky is what I just said: is that you actually have to keep in your head two different sources of law— two totally different topics— whereas another topic like torts is really just one class to one topic that you might have studied as a first-year.

And so, I'm going to dive in here into substantive criminal law first. And the substantive criminal law can get a little complicated. There's a lot of stuff to cover. And then after that, we're going to go into the constitutional rules of criminal procedure, or what the outline published by the National Conference of Bar Examiners calls Constitutional Protection of Accused Persons. And by the end of it, you're going to know everything you need to know to answer the questions on the MBE really effectively.

I feel very confident about that. I actually just myself recently went through and read and took every single criminal law and procedure MBE question that has ever been released in the history of the bar and got a very good sense of what the bar examiners are looking for here, and I'm going to convey to you the key knowledge you need to answer those questions and not give you a whole lot of stuff that you don't need to answer those questions.

Test-Taking Tips

One thing just to keep in mind, one general test-taking tip I'd like you to keep in mind when you're in this area: once you start getting questions (start taking sort of practice questions in criminal law and procedure for the MBE), one thing that you should try to do early on when you look at the question is figure out, "Hey, is this a criminal law question, or is this a criminal procedure question?" because there are questions that are just about substantive criminal law and there are questions that are just about criminal procedure and there are occasional questions that actually require you to know things from both of those two areas. But for the most part, they're testing one or the other, and the sooner you can figure that out, the sooner your brain can really start working and figuring out what you need to be thinking about to figure out the right answer. And there can be ones that are a little tricky— it looks like it's a question about the law of homicide, but it actually turns out to be a question about the constitutional rules governing criminal trials. And so, read the question. And maybe that should be the first thing you think about, " Is this criminal law, or is this criminal procedure?" because they're certainly not going to tell you when you're taking the questions.

Order of the Course

So, let's get going. One other preliminary note: which is that we are pretty much going to be tracking the outline for this topic that is published by the bar examiners with one small difference. With respect to criminal law, we've moved around the order because, for whatever reason, the bar examiners thought it made sense to study the general principles of criminal law kind of last after studying specific crimes like homicide and theft, and we thought that didn't make a ton of sense, so we're going to do that first.

But otherwise, we're going to try to keep the lesson structure really kind of working within the outline they gave us because they're the people who write the test. They're the people that we need to make happy when you take the test, and so we might as well use the structure that they gave us. And so, it might look a little different than your outlines that you came up with in law school or the way that you were taught something in terms of how to put them on an outline when you were in law school, but the bar examiners are in charge here, and we're going to do things the way they want us to.