Understanding Criminal Procedure on the Bar Exam

Criminal Procedure presents a lot of testable issue for bar examiners. From arrests, to searches and seizures, to pretrial rights and procedures, there are a lot of difficult areas the MBE tests within Crim Pro.

Here are some particular issues you should look out for.

1. Burden of proof issues.

But one area that is tested more often than you might think is burden of proof issues. You will inevitably see at least a couple of MBE Questions that involve a jury instruction or the appropriate level of appellate review in a criminal law issue.

2. Searches

This is probably not a shocker, but the legality of government searches comes up a lot within Criminal Procedure, probably more than other issues like arrests and detentions or the exclusionary rule. Hot pursuit and emergency searches in particular are areas the MBE likes to test.

Another issue to keep an eye out for is consent. Oftentimes questions will show a what would otherwise be a pretty clear 4th Amendment violation, but the police have obtained consent. In these questions, the consent issue is usually pretty subtle or buried within a bunch of other facts.

3. Grand jury

Grand jury procedures come up a fair bit as well. What's important to remember is that by and large normal evidentiary rules do not apply with grand jury proceedings. 

The other thing to know about grand jury questions is that they can often cross into Evidence questions. So you can be reading a question that you think is a Crim Pro issue and in turns out to be Evidence.


MBE and MEE Essay Flashcards that help you learn and memorize key bar exam concepts, effectively and affordably.

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