Criminal Procedure Exam Checklist

This varies more by school than almost any other 1L/2L subject. Many schools split the material into "Criminal Procedure: Investigations" (Fourth Amendment, Miranda, right to counsel at interrogation and lineups) and "Criminal Procedure: Adjudication" or "Bail to Jail" (charging, discovery, plea bargaining, jury trial, double jeopardy, sentencing). Some schools teach a single survey covering both, thinly. A few include federal habeas.

Before you build a checklist, do two things. Read the syllabus's last two weeks closely, because professors overweight what they just taught. And pull every past exam your professor has released. Criminal procedure professors are unusually consistent in format: a professor who writes a single sprawling police-encounter narrative will write another one, and a professor who writes three short problems plus a policy question will do it again.

A note on citation: on a closed-universe exam you cite by case name only — "under Gant" or "Riley controls" — never a full Bluebook citation. Save Bluebook form for your seminar paper and your memo, not your blue book.

Work through these steps in sequence, and never skip a step just because the answer seems obvious. Points are allocated to the steps, not to the conclusion.

Step 1: Government action. A private search is unregulated unless the private party acted as a government agent. Step 2: Was there a search or a seizure? A search occurs if the government invaded a reasonable expectation of privacy (Katz) or physically trespassed on a constitutionally protected area to obtain information (Jones, Jardines). Run the third-party doctrine (Smith v. Maryland, United States v. Miller) and then run Carpenter, which carved out historical cell-site location information. Flag open fields, curtilage (Dunn factors), aerial surveillance, garbage, dog sniffs (Caballes vs. Jardines), and sense-enhancing technology (Kyllo). A seizure of property is a meaningful interference with a possessory interest; a seizure of a person is discussed below.

Step 3: Was there a warrant, and is it good? Check probable cause under the Gates totality test, a neutral and detached magistrate, particularity in describing the place and the things, and truthfulness of the affidavit (Franks). Step 4: If no warrant, which exception? Step 5: Standing and remedy.

Fix the moment of seizure first, because everything the officer learns after that moment cannot be used to justify it. A seizure occurs when a reasonable person would not feel free to leave or to terminate the encounter (Mendenhall, Bostick), but if the suspect does not submit, there is no seizure until physical force is applied or the suspect submits to authority (Hodari D.; Torres v. Madrid holds that application of force with intent to restrain is a seizure even if the suspect gets away).

Then grade the level of intrusion. A consensual encounter needs nothing. A Terry stop needs reasonable, articulable suspicion — a particularized and objective basis, less than probable cause; run Wardlow (headlong flight in a high-crime area), Alabama v. White and Navarette (anonymous tips need indicia of reliability), and Kansas v. Glover. An arrest needs probable cause, and the officer's subjective motive is irrelevant (Whren); a full custodial arrest is permitted even for a fine-only offense (Atwater).

Traffic stops are the highest-yield fact pattern in the course. Check duration: the stop may last no longer than needed to complete the mission, and adding a dog sniff after the tasks are done violates Rodriguez even by seconds. Check who is ordered out (Mimms, Wilson). Check whether any search of the car rests on Gant, the automobile exception, inventory, or frisk of the passenger compartment for weapons.

Miranda has five gates and you must walk all five. (1) Custody: formal arrest or restraint on freedom of movement of the degree associated with arrest, judged objectively; ordinary traffic stops are not custody (Berkemer), and imprisonment alone is not custody (Howes v. Fields). (2) Interrogation: express questioning or its functional equivalent — words or actions police should know are reasonably likely to elicit an incriminating response (Innis). Volunteered statements are out; undercover agents in a cell do not trigger Miranda (Perkins). (3) Adequate warnings, which need not be verbatim. (4) Waiver: knowing, intelligent, and voluntary; silence plus a later statement can establish implied waiver (Berghuis v. Thompkins). (5) Invocation and its consequences: silence invoked requires scrupulous honoring (Mosley); counsel invoked requires all questioning to stop until counsel is present (Edwards, Minnick), unless there has been a fourteen-day break in custody (Shatzer). Invocation of counsel must be unambiguous (Davis).

Then run the exceptions and consequences: the public safety exception (Quarles); use of an un-Mirandized but voluntary statement for impeachment (Harris); the physical fruits of a Miranda violation are generally admissible (Patane); and the two-step "question first" problem, where you argue Elstad against Seibert depending on whether the midstream warnings were deliberately undermined.

Keep Miranda separate from due process voluntariness. A confession is involuntary only if there was police coercion overbearing the suspect's will (Connelly). And note Vega v. Tekoh: a Miranda violation is not itself a basis for a §1983 damages claim.

The Sixth Amendment right attaches at the initiation of adversary judicial proceedings — indictment, information, arraignment, or preliminary hearing — and it is offense-specific under the Blockburger test (Texas v. Cobb). After attachment, deliberate elicitation by the state or its agents without counsel violates Massiah and Brewer v. Williams. A jailhouse informant who merely listens is a passive ear and is fine (Kuhlmann); one who stimulates conversation is not (Henry). Montejo overruled Michigan v. Jackson, so a defendant who has counsel appointed can still be approached and can validly waive.

Identification procedures follow the same attachment line. A post-charge corporeal lineup is a critical stage requiring counsel (Wade), but a pre-charge lineup is not (Kirby), and photo arrays never require counsel (Ash). Suggestive identifications are separately attacked on due process grounds using the Biggers reliability factors under the Manson totality test; Perry v. New Hampshire limits this to police-arranged suggestiveness.

Standing is a graded step, not a formality. The defendant must have had a personal reasonable expectation of privacy in the place searched (Rakas). An overnight guest has one (Olson); a short-term visitor there for a business transaction does not (Carter); an unauthorized driver of a rental car may (Byrd). If a co-defendant's rights were violated, your client cannot suppress.

If suppression is available, extend it to derivative evidence under Wong Sun, then run every exception the prosecution will raise: independent source (Murray), inevitable discovery (Nix), and attenuation, using the Brown v. Illinois factors of temporal proximity, intervening circumstances, and flagrancy — and remembering Strieff, where discovery of a valid arrest warrant attenuated an unlawful stop. Finally, run good faith: Leon (facially valid warrant later invalidated), Evans and Herring (database errors, isolated negligence), and Davis (reliance on binding appellate precedent). Note that the rule does not apply to knock-and-announce violations (Hudson), grand jury proceedings, or parole hearings, and that illegally obtained evidence can be used to impeach the defendant's own testimony.

Segment the fact pattern by encounter before you write a word. Most exams contain three to six discrete police actions — the tip, the stop, the frisk, the car search, the station interrogation, the lineup. Head each one and analyze it independently, because the legality of the second often depends on the first. Write the headings even if you cannot finish the analysis; you will get issue-spotting credit.

For each issue, state the rule in one sentence, apply the exam's specific facts in three to five, and pick a side. Professors punish the phrase "a court could go either way" when there is a controlling case, and punish conclusory application even more. The way to argue both sides efficiently is to name the strongest counterargument in one clause — "the state will argue the tip was corroborated under White, but the corroboration here was of innocent details only" — then decide.

Two habits reliably cost points. First, skipping the search/seizure threshold question and jumping straight to warrant exceptions; if there was no search, there is nothing to justify, and saying so earns credit. Second, ignoring the remedy. If you conclude a search was unlawful, say what gets suppressed and what does not, and address whether good faith saves it.