How the MBE Approaches Criminal Law and Procedure

What the bar examiners call “Criminal Law and Procedure” is really two distinct topics. Criminal law covers the substantive law of crimes, like the elements of larceny or homicide and the rules of accomplice liability. Criminal procedure consists of the rules that govern criminal investigations and prosecutions, like the Fourth Amendment prohibition against illegal searches and seizures.

Each of these topics draws rules from many possible sources, which would make studying for them a herculean task. Fortunately, the MBE simplifies things for students. For criminal law, the bar tests the majority rules used in “common law” jurisdictions—in other words, the jurisdictions that don’t follow the Model Penal Code. For criminal procedure, the bar tests only rules based on the U.S. Constitution.

How You Should Approach Criminal Law and Procedure on the MBE

Identify the Issue

When you see a crim question on the MBE, step one is deciding whether it falls within “law” or “procedure.” Sometimes, you’ll be tricked into thinking a question is about substantive law because the stimulus talks about robbery or extortion. But you should always look to see what kind of issue the question is actually testing. Is the issue about the crime of robbery, or is it about whether the robbery suspect was arrested pursuant to an invalid warrant? Once you’ve distinguished between law and procedure, you can drill down within that topic and decide which rules apply.

Spotting the issue early on is a good idea, even if the question is very clearly about law or about procedure. For example, a question might set up a tricky Fourth Amendment fact pattern. As you read the stimulus, you’re thinking through all the intricacies of Fourth Amendment principles. Then, you reach the stem, and it asks you if the evidence should be excluded before the grand jury—a place where evidence will never be excluded. None of that Fourth Amendment reasoning was necessary for you to get the answer right! If you start by identifying the ultimate issue you need to resolve, you can save time and effort on questions like this one.

Variation Smokescreens

Some MBE questions appear to test variations on a rule, but the variation turns out to be irrelevant. Don’t let the presence of a variant in the fact pattern distract you from more general principles as you analyze the issue.

One favorite of the bar examiners is the “retreat rule” under self-defense. In some jurisdictions, you have to retreat before using lethal force, but in most jurisdictions, you don’t. The bar examiners may write a question that gets you thinking about these different versions of the rule, but the answer actually turns on a requirement that the variants have in common. Maybe the defendant was the initial aggressor or maybe lethal force wasn’t a proportional response to the threat. In those circumstances, it doesn’t matter which retreat-rule variant applies in your jurisdiction because the defendant wouldn’t be justified in using legal force no matter what.

The Fourth Amendment Rules

Criminal procedure includes tons of topics, but many of them don’t lend themselves well to multiple-choice questions. Outside of the Fourth Amendment, the bar examiners can’t test most of the rules in any detail. So, learn the basics for those other topics, and don’t worry about seeing a lot of complex, borderline cases on the MBE.

Rely on Reason

If you get a “law” question about a crime you haven’t encountered, try to imagine what elements the crime might involve. Often, you can draw parallels with other crimes you’re familiar with, but you should also consult your common sense. Try to identify the answer choice that corresponds to the most sensible rules about the defendant’s conduct.

More generally, be skeptical of answer choices that state very broad reasons for a particular result. Often, you can cross off an answer or two because while they might sound plausible, they also appear to overstate things. Beware absolutes like “always” or “never,” which might be signals that an answer choice is exaggerating.