Bar Review: Criminal Procedure

Criminal Law and Procedure are often grouped together on bar review outlines. However, over half of the questions in this category relate to questions of Criminal Procedure. It is a highly tested subject, and interesting as well since it deals mostly with the constitutional rights of the accused.

Real World 101

This is a subject near and dear to my heart, because I spent most of my career working as a criminal defense attorney. I can tell you first hand, that despite all of the protections that the constitution seems to provide, when a person is charged with a crime the government has an extraordinary amount of power to control that person’s destiny. And they use it!

Going to trial is scary. Just about the scariest thing that can happen to an accused person. Think about it. You have shaky factsbar review, criminal procedure law, gamble (almost always whether you are guilty or not), and a jury of 6-12 perfect strangers who will decide your fate. Who knows what a jury will decide!? No one. Ever. You really just don’t know what a particular person or jury will get hung up on, which can sway the whole jury one way or another. It is one of the biggest gambles that a person can take with their life, and many people won’t take that gamble. Even it they are innocent.

And if the person does not want to play Russian Roulette with his/her life, they take a plea. The prosecutor, or government are the architects of that plea. If they are stubborn or unreasonable, many times your client is between a rock and a hard place. Pleading to the judge is the only other option, and that can be just as much of a gamble as trial.

I say all of this to help you keep in mind the real world application of these procedural rules. They are really a bare minimum. But at least we have these rules to give some protection to citizens.

Back to Bar Review: Search & Seizure, Arrest

So let’s get to it. What’s important to know for the Bar Exam?

bar review, criminal procedure law, gambleObviously arrest, search and seizure are frequently tested topics. It is important to know the 4th amendment protections against unreasonable search and seizure. It’s all about government standing to intrude into someone’s personal space where there is a reasonable expectation of privacy. Know which in places and situations a person has a reasonable expectation of privacy, and which places they do not.
Generally, searches require a search warrant. But there are exceptions.

  • Search incident to a lawful arrest
  • Automobile exception
  • Plain view
  • Consent
  • Stop and Frisk

Know these exceptions, and know what situations warrant application of these exceptions to the search warrant requirement. Know how broad the exception reaches. In other words, if there is a search incident to a lawful arrest, does that mean they can search everywhere around that person? How far does it extend?

You must also know what grounds would succeed in allowing the government to wiretap a person’s phone, eavesdrop, or use a confidential informant to get a confession that is usable.

Know when it is appropriate for the government to arrest or seize a person. There must be:bar review, criminal procedure law, arrest

  • Probably cause – a low threshold
  • No warrant is needed to arrest an individual in public
  • Warrant is needed to arrest an individual in their home
  • Only exception would be exigent circumstances
  • Car stops
  • Stop & Frisk

5th Amendment Protection Against Self-Incrimination

Can anybody say Miranda? Things to know:

  • Miranda applies only when a person is
    • In custody, or
    • Being interrogated
  • Miranda states that a person in either of these situations must be informed that
    • They have a right to remain silent
    • Anything they say can and will be used against them in a court of law
    • They have the right to an attorney, and if they can’t afford one, one will be appointed to them
      • Ie. Right to Counsel
  • At any time the defendant has the right to terminate the interrogation
    • Just a side note here: many people do not exercise this right as they feel that they will be judged guilty simply because they no longer wanted to talk.
  • If Miranda is violated, the exclusionary rule applies. Anything the defendant said to the police is inadmissible in court.

Coerced confessions (in violation of Miranda) are not admissible, HOWEVER, they are admissible for impeachment. So essentially, the defendant cannot say a single thing that is contradicted by his inadmissible statement, or it becomes fodder for impeachment on cross.

Exclusionary Rule

Know this rule, when it can be used and when it is improper. The exclusionary rule is used to stop the admission of improperly obtained evidence. Evidence that is illegally obtained by police, as well as any fruit of the poisonous tree is excluded.

The exceptions would be harmless error, inevitable discovery, independent source for the information, defendant’s intervening act of free will.

Right to Counsel

bar review, criminal procedure, right to an attorneyKnow the 6th Amendment Right to Counsel. This right attaches immediately after judicial proceedings begin. It’s important to know some details about this topic, such as the due process standard, what forms of identification are allowed and why, and what remedies there are in place if counsel is not provided in a timely fashion.

It’s also important to know Crawford here. The right to confront one’s accuser was established in this landmark case, so be familiar with it.

Trial Process

It is important to know the stages of the trial process. Pre-trialbar review, criminal procedure, involves initial appearance and bail, preliminary hearings and grand jury indictments. The prosecutor further has a duty to disclose exculpatory evidence, and the defendant must be competent to stand trial.

Then there is the trial itself. Defendants have a right to trial by an impartial jury. Criminal trials are public (hence all the media coverage of high profile cases). The defendant has the right to a speedy trial with competent counsel, and an impartial judge. He further has the right to confront his accusers. Know what constitutes all of the above, as well as when double jeopardy attaches.

The prosecution has the burden of proof, and generally makes ‘offers’ to resolve the case without going to trial. These offers if accepted result in a plea of guilty or nolo contendere and resolves the case as long as the judge accepts the plea.


After trial is over there are matters of cruel and unusual punishment, the rights of the convicted while incarcerated, and appeals. Thrown in for extra fun can be matters pertaining to the death penalty, and collateral attacks on the conviction.

This is a brief overview of the area of criminal procedure, an area near and dear to my heart! I hope it helped give you a general guideline from which to study.

Best of luck, and know that YOU CAN DO THIS!

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