Most Commonly Tested Criminal Procedure Issues

Criminal procedure fact patterns are unusually predictable because the doctrine is organized chronologically: investigation, arrest, interrogation, identification, charging, trial, sentence, appeal. Professors write the timeline forward and drop a violation at each stage. Your job is to walk the same timeline.

Rough weighting across MBE questions and typical semester exams:

Use the same five-step chain every time, and say each step out loud on the page. (1) Is there government action? (2) Is it a search under Katz's reasonable expectation of privacy test or a Jones physical-trespass theory? (3) Does this defendant have standing — a personal expectation of privacy under Rakas v. Illinois and Minnesota v. Carter, with overnight guests protected under Minnesota v. Olson and rental drivers under Byrd v. United States? (4) Was there a valid warrant, or does an exception apply? (5) If not, what gets suppressed?

The exception step is where the points are. Search incident to arrest is capped by Chimel v. California and, for vehicles, by Arizona v. Gant's two prongs — reaching distance or reason to believe evidence of the arrest offense is inside. Riley v. California bars warrantless cell phone searches incident to arrest. The automobile exception under Carroll requires probable cause and mobility, but Collins v. Virginia stops it at the curtilage. Consent must be voluntary under Schneckloth v. Bustamonte, can come from apparent authority under Illinois v. Rodriguez, and is defeated by a present, objecting co-occupant under Georgia v. Randolph — but not by an objector the police have lawfully removed (Fernandez v. California).

For seizures of the person, distinguish a Terry stop (reasonable suspicion, articulable facts) from an arrest (probable cause). Whren v. United States makes pretext irrelevant if there is probable cause for a traffic violation, and Rodriguez v. United States forbids prolonging a stop beyond its mission to run a dog sniff. Torres v. Madrid holds that applying physical force with intent to restrain is a seizure even if the suspect escapes.

Finish with the remedy. Wong Sun supplies the fruits doctrine; then run the four escape hatches: independent source (Murray), inevitable discovery (Nix v. Williams), attenuation (Brown v. Illinois; Utah v. Strieff), and good faith (Leon, Herring, Davis). A student who suppresses evidence without discussing good faith or inevitable discovery leaves points on the table.

Run five questions in order. Was the suspect in custody — a formal arrest or restraint on freedom of movement to the degree associated with arrest, judged objectively and, for minors, with age factored in under J.D.B. v. North Carolina? Was there interrogation — express questioning or its functional equivalent under Rhode Island v. Innis? Were warnings given? Was there a valid waiver, which can be implied from an uncoerced statement after warnings under Berghuis v. Thompkins? Was there an invocation, which must be unambiguous under Davis v. United States?

The recurring traps: an undercover officer in a jail cell does not trigger Miranda (Illinois v. Perkins); Quarles's public safety exception admits the unwarned statement; an Edwards v. Arizona counsel invocation bars reinitiation for all offenses until counsel is present or a 14-day break in custody occurs (Maryland v. Shatzer), while a Mosley silence invocation only requires scrupulous honoring; and unwarned statements remain usable to impeach (Harris v. New York). Compare Oregon v. Elstad with Missouri v. Seibert on question-first sequences.

Always separately analyze voluntariness under the Due Process Clause — official coercion is required (Colorado v. Connelly) — and, if formal charges have been filed, the Sixth Amendment under Massiah v. United States and Brewer v. Williams, which is offense-specific per Texas v. Cobb. A confession question that only discusses Miranda is usually half an answer.

Identification questions almost always pair two theories. First, the Sixth Amendment: counsel is required at a post-charge corporeal lineup or showup (United States v. Wade), but not before formal proceedings begin (Kirby v. Illinois) and not at photo arrays (United States v. Ash). Second, due process: suppression requires police-arranged suggestiveness plus unreliability under the Neil v. Biggers factors as applied in Manson v. Brathwaite, and Perry v. New Hampshire holds that suggestiveness not created by police gets no due process screening at all.

On counsel generally, know that indigent defendants get appointed counsel whenever imprisonment is actually imposed, including a suspended sentence later activated (Argersinger, Scott v. Illinois, Alabama v. Shelton). Strickland v. Washington's deficiency-plus-prejudice test is the workhorse; extend it to plea bargaining under Missouri v. Frye and Lafler v. Cooper and to immigration advice under Padilla v. Kentucky. Faretta v. California gives a right to self-representation after a knowing and voluntary waiver.

Confrontation is the most heavily tested trial right. Crawford v. Washington bars testimonial hearsay unless the declarant is unavailable and was previously cross-examined; Davis v. Washington and Michigan v. Bryant supply the primary-purpose test for 911 calls and on-scene statements; Melendez-Diaz and Bullcoming cover forensic reports; Bruton v. United States governs a non-testifying codefendant's confession at a joint trial.

Also expect Brady v. Maryland with its Giglio impeachment extension and Kyles v. Whitley's cumulative materiality standard; Batson v. Kentucky's three-step peremptory challenge framework; Ramos v. Louisiana's unanimity requirement for serious offenses in state court; Duncan and Baldwin's six-month line for the jury trial right; and Apprendi/Alleyne on facts that raise statutory maximums or mandatory minimums.

Double jeopardy turns on Blockburger's same-elements test, the dual sovereignty rule reaffirmed in Gamble v. United States, and issue preclusion under Ashe v. Swenson. Speedy trial uses the four Barker v. Wingo factors, with dismissal with prejudice as the only remedy. Guilty pleas require a Boykin colloquy establishing a knowing and voluntary waiver.

Yes, and the difference matters for how you study. The MBE tests Criminal Law and Procedure together in about 25 scored questions, with procedure heavily weighted toward the Fourth Amendment, Miranda, and the exclusionary rule, and almost nothing on habeas, discovery mechanics, or grand juries. Answers are federal constitutional minimums only — never apply a state rule.

Law school exams vary because coverage varies. Many schools split the course into 'Investigation' (Fourth, Fifth, Sixth Amendment police practices) and 'Adjudication' (bail, charging, discovery, pleas, trial, sentencing, appeals). Check which course you are in. Beyond that, professors test what they wrote about: if your syllabus spent three weeks on Carpenter v. United States and digital surveillance, expect a cell-site or pole-camera problem, not a stale automobile-exception hypo. Read the last five years of the professor's own scholarship titles and old exams; that predicts the fact pattern better than any commercial outline.

The most common failure is skipping standing. If the defendant lacks a personal reasonable expectation of privacy, the search may have been flagrantly unlawful and he still loses — say so explicitly rather than assuming it. The second is stopping at 'this was an unlawful search' without running the exclusionary rule and its exceptions. The third is collapsing Miranda, voluntariness, and Massiah into one paragraph when each has a different trigger and a different remedial scope.

Structurally, organize by evidentiary item or by police action, not by amendment. For each item of evidence, state what it is, how the government got it, which constitutional provision is implicated, whether it was violated, and whether the item is suppressed, admissible for impeachment only, or admissible in full. Name the exception you are rejecting and why — 'the automobile exception fails because the car was parked in the curtilage under Collins' earns more than a conclusion. Finally, if the facts are ambiguous on custody, suggestiveness, or voluntariness, argue both sides briefly and commit to one. Graders reward the commitment.