On the Multistate Bar Examination (MBEĀ®), you'll face 25 questions on Criminal Law and Procedure, typically evenly split. Starting with the July 2026 administration, the NextGen Uniform Bar ExaminationTM (NextGen UBE) tests this subject under the name Criminal Law and Constitutional Protections of Accused Persons, applying it through skills-based tasks and integrated question sets that may include provided legal resources such as statutes and case law.
Understanding how this subject is tested and how the MBE and NextGen UBE formats differ is essential for anyone sitting for either exam.
What Criminal Law and Procedure Covers on the Bar Exam
Criminal Law focuses on the elements and defenses of specific offenses: what conduct constitutes a crime, what mental state the prosecution must prove, and what defenses a defendant may raise.
Criminal Procedure focuses on constitutional safeguards: the rules governing search and seizure, confessions, the right to counsel, and trial protections that apply from the moment of investigation through appeal.1
On both the MBE and the NextGen UBE, students must understand both bodies of law. The sections below break down how each exam covers this subject, including which topics appear in each format and how the testing approach differs.
MBE® Criminal Law & Procedure Topic Breakdown
| Criminal Law & Procedure Subtopics | % Tested | Number of Questions |
|---|---|---|
| Homicide | 12.5% | 3-4 |
| Other crimes | 12.5% | 3-4 |
| Inchoate crimes; parties | 12.5% | 3-4 |
| General principles | 12.5% | 3-4 |
| Constitutional protection of accused persons | 50.0% | 12-13 |
| Total scored questions for Criminal Law & Procedure | 25 | |
The breakdown above reflects the National Conference of Bar Examiners' (NCBEĀ®) published MBE subject matter outline. Constitutional protections of accused persons accounts for half of all Criminal Law & Procedure questions on the MBE, making it the highest-priority area in this subject.
Criminal Law & Procedure is 1 of 7 subjects tested on the MBE alongside Civil Procedure, Constitutional Law, Contracts, Evidence, Real Property, and Torts.
Homicide
The MBE typically includes 3ā4 homicide questions. The following are key areas to focus on.
- Intentional killings: premeditation and deliberation
- Unintentional killings: reckless behavior, negligence, and felony murder
- Manslaughter: provocation and misdemeanor manslaughter
For these questions, fact patterns will often require you to assess the defendant's actions and mental state to determine the appropriate charge. To identify the correct level of homicide, it is imperative to pay particular attention to the defendant's intent and emotional state.
Other Crimes
You can also expect to face Criminal Law questions about offenses such as:
- Theft and receipt of stolen goods
- Robbery
- Burglary
- Assault and battery
- Rape and statutory rape
- Kidnapping
- Arson
- Possession
As with homicide, these questions are presented with fact patterns. To answer them correctly, focus on the elements of the crime. If an element is missing, the defendant cannot be convicted of the offense.
Inchoate Crimes and Parties
Inchoate crimes are incomplete offenses. The MBE tests this topic in 3ā4 questions. Key topics include:
- Types of inchoate offenses
- Attempt
- Conspiracy
- Solicitation
- Parties to a crime
When answering questions about inchoate offenses, remember the merger doctrine; it may impact the crimes the defendant can be convicted of.
General Principles
The MBE tests general principles in 3ā4 questions covering the following foundational Criminal Law concepts:
- Acts and omissions
- State of mind: required mental state, strict liability, and mistake of fact or law
- Responsibility: mental disorder and intoxication
- Causation
- Justification and excuse
- Jurisdiction
To perform well on this section of the MBE, it is essential to clearly understand the differences between concepts such as intent and recklessness. Grasping how these concepts apply to different criminal offenses will help you determine a defendant's mental state and apply the correct legal principles in each case.
Constitutional Protections of Accused Persons
Half of all Criminal Law & Procedure questions on the MBE fall in this category. Key topics include:
- Arrest, search, and seizure
- Confessions and the privilege against self-incrimination
- Lineups and identification procedures
- Right to counsel
- Fair trial and guilty pleas
- Double jeopardy
- Cruel and unusual punishment
- Burdens of proof and persuasion
- Appeals and error correction
The majority of questions in this section center on applying the Fourth, Fifth, Sixth, and 14th Amendments.
NextGen UBE Topic Breakdown
On the NextGen UBE, Criminal Law & Procedure is called Criminal Law and Constitutional Protections of Accused Persons and is 1 of 8 Foundational Concepts and Principles tested.
The NextGen UBE tests criminal law knowledge differently than the MBE. In addition to traditional multiple-choice questions, the NextGen UBE features integrated question sets, which require examinees to apply statutes, analyze police reports or interview excerpts, and demonstrate lawyering skills such as issue spotting, investigation, and legal writing. When legal resources such as statutes or case law are provided in a question, examinees must demonstrate the ability to analyze and apply those resources, not just recall memorized rules.2
The topic areas below reflect the NCBE's NextGen UBE Content Scope for July 2026 to February 2027.
General Principles
The NextGen UBE tests foundational criminal law principles that examinees are expected to know without being provided legal resources.
- Acts and omissions: voluntariness, omission as an act, and possession as an act
- State of mind: intent or purpose, knowledge, recklessness, criminal negligence, and mistake of fact or law; examinees must recognize mental states as expressed in statutory language
- Defenses: provocation, intoxication, self-defense, defense of others, and defense of property
- Jurisdiction: federal and state criminal jurisdiction as defined by statute
- Burdens of proof and persuasion: presumption of innocence, differences between reasonable suspicion, probable cause, and proof beyond a reasonable doubt, and prosecution and defense burdens
Statutory Crimes
Unlike the MBE, the NextGen UBE tests the elements of statutory crimes and applicable defenses using provided statutes. This means examinees are not expected to recall common-law definitions from memory. Statutory crimes tested include:
- Homicide (including felony murder): intentional murder, unintentional murder, manslaughter, negligent homicide, and felony murder
- Theft: statutory theft, aggravated theft, and defenses
- Burglary: statutory burglary, aggravated burglary, and defenses
- Robbery: statutory robbery, aggravated robbery, and defenses
- Assault and battery: statutory assault and battery, aggravated assault and battery, and defenses
- Possession and trafficking offenses: possession of drugs, guns, or contraband; possession with intent to distribute; contraband trafficking; and defenses
- Operating a motor vehicle while impaired and vehicular manslaughter: driving while impaired or under the influence, vehicular manslaughter, and defenses
Inchoate Crimes and Parties to a Crime
- Attempt: elements of attempt, defenses, different formulations of the actus reus requirement (including the "substantial step" test), general vs. specific intent, lesser included offenses, and the merger doctrine
- Conspiracy: elements of conspiracy, defenses, and liability of coconspirators for a substantive crime
- Parties to a crime: accomplices and accessories before and after the fact
Constitutional Protections of Accused Persons
Note from NCBE: Examinees should answer questions based on protections provided by the U.S. Constitution only.
- Fourth Amendment | Arrest, search, and seizure: reasonable expectation of privacy; open fields, surveillance, technological information gathering, false friends, dog sniffs, and curtilage; reasonable suspicion and probable cause; search warrant requirements and exceptions (e.g., search incident to arrest, automobile exception, plain view, consent, stop-and-frisk, hot pursuit, exigent circumstances); seizure of persons (Terry stop and arrest); administrative and suspicionless searches; and the exclusionary rule and its exceptions (independent source, inevitable discovery, good-faith doctrine)
- Fifth Amendment | Confessions and self-incrimination: voluntariness of confessions, Miranda rights and warnings, invocation and waiver, public safety exception, and the right against self-incrimination in noncustodial settings
- Sixth Amendment | Right to counsel: attachment of the right to counsel, right to counsel at lineups and identification procedures, ineffective assistance of counsel, and disclosure of exculpatory evidence (Brady material)
- Right to trial by jury: jury trial right in criminal cases
MBE vs. NextGen UBE Criminal Law: Key Differences
The most important shift for the NextGen UBE is the move from pure recall to applied analysis. Knowing the elements of a crime is still necessary, but NextGen UBE questions may also ask you to read a provided statute and apply it to a clientās situation, identify weaknesses in a police report, or explain whether a constitutional protection applies in a given set of facts.
| Feature | MBE | NextGen UBE |
|---|---|---|
| Subject name | Criminal Law & Procedure | Criminal Law & Constitutional Protections of Accused Persons |
| Question format | Standalone multiple-choice (4 options, 1 correct) | Multiple-choice, integrated question sets, and written tasks |
| Legal resources provided? | No, relies on memorized rules | Sometimes; statutes, cases, or other materials provided |
| Skills tested | Rule recall and fact pattern application | Issue spotting, statutory analysis, legal writing, counseling |
| Topic distinctions | Homicide, other crimes, inchoate crimes, general principles, constitutional protections | General principles, statutory crimes (DUI, vehicular manslaughter), inchoate crimes and parties, constitutional protections |
| Exam weight published? | Yes, NCBE provides category percentages | No published subtopic weightings |
| Preparation focus | Memorize elements, mens rea, and constitutional rules | Apply rules using provided statutes and realistic fact patterns |
How to Study Criminal Law for the MBE and NextGen UBE
Criminal Law rewards students who build their preparation around the exam's structure rather than treating it as a single unified subject. Because constitutional protections of accused persons accounts for half of all MBE questions in this subject and the NextGen UBE adds statute-based and skills-focused testing to that foundation, preparation should involve both doctrinal mastery and applied analysis.
Master Criminal Law and Constitutional Protections
Success in mastering both criminal law and constitutional protections requires knowing 2 distinct bodies of law and being able to move between them. For criminal law, anchor your preparation in:
- The elements of each offense: homicide levels, theft-related crimes, burglary, robbery, and inchoate offenses
- Mental states: the distinctions between purpose, knowledge, recklessness, and criminal negligence and how each affects criminal liability
- Defenses: self-defense, defense of others, intoxication, provocation, and the M'Naghten Rule for insanity
For constitutional protections, anchor your preparation in the 4 key amendments.
- Fourth Amendment: reasonable expectation of privacy, probable cause, search warrant requirements, and major warrant exceptions, including consent, plain view, automobile exception, and exigent circumstances
- Fifth Amendment: Miranda rights, invocation and waiver, voluntariness of confessions, and the privilege against self-incrimination
- Sixth Amendment: attachment of the right to counsel, ineffective assistance of counsel, identification procedures, and disclosure of exculpatory evidence
- 14th Amendment: due-process protections throughout the criminal process
Focus on Highly Tested Topics
On the MBE, constitutional protections of accused persons accounts for approximately 12 to 13 of the 25 scored questions in this subject. Accordingly, more preparation time should be dedicated to this topic than to any other.
After constitutional protections, prioritize homicide. Homicide questions appear on the MBE, the Multistate Essay Examination (MEEĀ®), and many state bar essay components, making it one of the highest-return topics in this subject. Understand the distinctions between first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter and the roles that intent, premeditation, and provocation play in moving a charge from one level to another.
For the NextGen UBE, constitutional protections are equally important. The NextGen Content Scope Outline also lists statutory crimes as a separate category that includes DUI and vehicular manslaughter, which are not separate testing areas on the MBE. Students preparing for the NextGen exam should pay particular attention to these topics in addition to the constitutional protections framework.
Practice with Explanations, Not Just Answers
The most productive Criminal Law bar exam practice goes beyond checking whether you selected the correct answer. For every question you miss and every question you answer correctly but without full confidence, review why each answer choice is correct or incorrect.
This habit is especially valuable in Criminal Procedure, where small factual details can change the entire outcome. A consent-based search following a calm, voluntary exchange differs significantly from a search following a coercive encounter, and the legal analysis must reflect that distinction. Reviewing explanations trains you to spot those distinctions under exam conditions.
When working through explanations, ask 3 questions:
- What rule applies here?
- What fact triggered it?
- What would change if one fact were different?
This approach builds the analytical flexibility that both the MBE and NextGen exam reward.
Criminal Law Skills to Practice for NextGen
The NextGen bar exam measures specific lawyering skills, not just doctrinal knowledge. For Criminal Law and Constitutional Protections of Accused Persons, focus on developing the following abilities:
- Issue spotting: Identify which criminal law or constitutional principle is triggered by a given fact pattern.
- Statute reading: Extract the elements of a crime from a provided statute and apply them step by step.
- Constitutional analysis: Evaluate whether a search, seizure, confession, or identification procedure complies with Fourth, Fifth, and Sixth Amendment standards.
- Defense evaluation: Assess which defenses are available and whether they are likely to succeed.
- Written analysis: Explain how a rule applies to the facts in a clear, organized answer.
Build NextGen Skills with Mixed Practice
Preparing for the NextGen UBE requires not just rule mastery but also practice in applying the rules to realistic, context-rich scenarios. In addition to multiple-choice practice, incorporate these exercises into your preparation.
- Statute-based exercises: Take a provided criminal statute and work through a fact pattern using only that statute, without relying on memorized common-law definitions.
- Issue spotting drills: Read a criminal scenario and identify every constitutional and substantive criminal law issue present before checking your work.
- Short written analysis: After identifying an issue, write a 3 to 4 sentence explanation of how the rule applies to a specific fact pattern.
- Police report and document review: Practice identifying what evidence may be subject to suppression and what legal standard governs each piece, a skill directly tested in NextGen integrated question sets.
Themis's practice QSetsĀ® in the UWorld QBank are specifically designed to prepare students for NextGen integrated question sets, combining issue spotting, statutory analysis, and written response practice in a single exercise.
Criminal Law & Procedure Sample Questions and Answers
Think you're prepared to tackle Criminal Law & Procedure on the bar exam? Below are sample questions from UWorld's Criminal Law & Procedure question bank, carefully crafted to mirror the style and complexity of NCBE questions:
Two defendants were tried together before a jury in federal court for murder. Prior to trial, the first defendant had waived her Miranda rights and given a confession to a federal agent. The first defendant admitted that she was present when the murder took place but alleged that the second defendant had actually committed the killing.
At trial, the first defendant invoked her Fifth Amendment right and refused to testify. The federal prosecutor sought to admit the first defendant's confession through the federal agent who heard it. The federal agent would testify as to what the first defendant told him but would refer to the second defendant as "the other person" throughout all of his testimony. The second defendant objected to the proposed testimony on the ground that the agent's testimony would violate the second defendant's confrontation rights. The federal court overruled this objection, admitted the testimony, and instructed the jury that it should consider the agent's testimony only against the first defendant.
The jury found both defendants guilty of murder. The second defendant appealed, arguing that his conviction should be overturned because the agent's testimony was improperly admitted into evidence.
How will the appellate court likely rule?
| A. | Affirm the conviction, because the first defendant waived her Miranda rights before she confessed to the federal agent. | |
| B. | Affirm the conviction, because the testimony did not directly implicate the second defendant and the court provided a limiting instruction to the jury. | |
| C. | Overturn the conviction, because admitting a confession by a nontestifying codefendant at a joint trial against a defendant violates that defendant's right to confrontation. | |
| D. | Overturn the conviction, because the limiting instruction could not ensure that the jury did not consider the testimony in its deliberations regarding the second defendant. |
A man purchased a new rifle and wanted to try it out before bringing it on a hunting trip the following day. After leaving the gun store, the man drove to a remote part of town and stopped at a building that, by all outward appearances, had been abandoned. The man fired upon the building, using the building's boarded-up windows as targets. Unbeknownst to the man, a small group of people had taken shelter inside the building. The man ceased firing once he heard voices yelling from inside the building. However, one of the man's bullets struck and killed a woman inside the building.
The above facts were set out at trial, and the man was convicted of murder. On appeal, the man argues that the evidence was insufficient to support his conviction.
If the jurisdiction follows the common law of homicide, should the man's conviction be overturned?
| A. | No, because the killing occurred during the commission of an inherently dangerous felony. | |
| B. | No, because the man acted with negligent disregard of an obviously high risk of death by shooting at the building. | |
| C. | Yes, because the man did not intend to kill the woman when he fired at the building. | |
| D. | Yes, because the man was unaware of the danger posed by firing at the seemingly abandoned building. |
A man was at work when he received a call from his wife. She told the man that their neighbor had severely beaten their son for merely walking across the neighbor's lawn. Incensed, the man rushed home from work only to find the neighbor being led away in handcuffs by the police. Ten days later, the man was shopping at a local grocery store when he spotted the neighbor, who had been released on bail. As they crossed paths, the neighbor looked directly at the man and said, "Hitting your boy sure was fun." The man became enraged, immediately drew a knife, and stabbed the neighbor repeatedly, killing him.
The man was charged with murder. At trial, the man has requested that the court instruct the jury on voluntary manslaughter.
Should the court grant the man's request?
| A. | No, because a reasonable person in the man's position would have cooled after 10 days. | |
| B. | No, because words alone do not constitute adequate provocation. | |
| C. | Yes, because the man had not actually cooled off in the days between the son's beating and the neighbor's death. | |
| D. | Yes, because the neighbor's taunt provoked the man again. |
Your client was arrested at his home pursuant to a lawful warrant and then taken to the police station for processing. While the client was at the police station, a police officer read the Miranda rights to the client, who responded, "You'll never make anything stick. I want my lawyer." As the client was taken for fingerprinting, a second police officer who lives near the client and knows him socially called across the room to him, "You got caught?" The client responded, "My operation is too big for anyone to hold me. You'll see." The client was subsequently charged with drug trafficking in connection with the arrest. You are considering filing a pretrial motion to suppress the statement the client made to the second police officer.
Which of the following topics is the most important for you to research to determine the likelihood of success on a motion to suppress?
Select one response options.
- Independent source exception.
- Interrogation.
- Involuntariness.
- Sixth Amendment right to counsel.
Explanation:
To ensure that a suspect is protected from compelled self-incrimination under the Fifth Amendment, police must give the suspect Miranda warnings before a custodial interrogationāi.e., when the suspect is:
- in custody ā (1) placed under formal arrest or (2) restrained in a manner that a reasonable person would not feel free to leave and
- subjected to interrogation ā questions, words, or actions directed at a suspect that police know or should know are likely to elicit an incriminating response.
When a suspect invokes the Fifth Amendment right to counsel by making a specific and unambiguous request for counsel, all interrogation must stop until counsel is present. Accordingly, any statement made as a result of interrogation after this right has been invoked generally must be suppressed at trial.
Here, the police arrested the client and took him to the police station (i.e., in custody). The client was given Miranda warnings, and he requested counsel, which prohibited interrogation without counsel present. But a second officer who knew the client socially called out to him ("You got caught?"), which the officer should have known would likely elicit an incriminating response. The court must suppress that statement if the officer's conduct constitutes an interrogation, so it is most important to research "interrogation" to determine the likelihood of success on a motion to suppress.
(Choice A) The independent source exception to the exclusionary rule does not apply here because the client's statement did not come from a source independent of the initial illegalityānamely, the possible Fifth Amendment violation.
(Choice C) Although volunteered statements are not protected by Miranda, involuntary (i.e., coerced) statements are protected. But here, no facts suggest that the client's statement was coerced.
(Choice D) The Sixth Amendment right to counsel automatically attaches when formal judicial proceedings (e.g., arraignment) have begun and applies at all critical stages of prosecution. Here, it had not attached because the client had only been arrested and no formal proceedings had begun.
Educational objective:
When a suspect who is in custody and subject to interrogation invokes his Fifth Amendment right to counsel, all interrogation must stop until counsel is present. Interrogation occurs when questions, words, or actions that police know or should know are likely to elicit an incriminating response are directed at the suspect.
- U.S. Const. amend. V (privilege against self-incrimination).
- Miranda v. Arizona, 384 U.S. 436, 469ā72 (1966) (establishing the warning requirements for custodial interrogation).
Your client, a mall security guard, was working one evening at his post at one end of the mall when a heated fight broke out between two students. The client broke up the fight and escorted the students out of the mall. When the client returned to his post, he saw a customer lying on the ground in the same store where the fight had occurred. There is some evidence that the customer had been injured in the altercation and had been left unnoticed for some time. The client called an ambulance, which arrived shortly thereafter. The customer died on the way to the hospital. The client has been charged with involuntary manslaughter in connection with the customer's death, and you want to identify the core issues in the case.
Which of the following legal principles is most likely to affect whether the client will be found guilty of involuntary manslaughter?
Select two response option.
- Actus reus.
- But-for causation.
- Inherently dangerous felony.
- Strict-liability crime.
- Transferred intent.
- Vicarious liability.
Explanation:
Every crime (e.g., involuntary manslaughter) requires proof of (1) the requisite mens rea, (2) an actus reus, and (3) causation. A defendant commits the actus reus by:
- voluntarily performing a conscious bodily movement or
- failing to act when he had a legal duty and the ability to do so.
Here, the client, a security guard, is charged with involuntary manslaughter of a customer. There is evidence that the customer, injured in a fight the client had broken up, had been lying unnoticed on the ground until the client saw him and called an ambulance. The client's failure to act earlier (i.e., provide timely assistance) constitutes actus reus only if he had a legal duty to provide aid. Therefore, "actus reus" is a legal principle likely to affect whether the client will be found guilty of involuntary manslaughter.
Additionally, an involuntary manslaughter conviction requires proof that the defendant's conduct was the actual ("but for") cause and proximate cause of the victim's death.
Here, the client's decision to leave his post without helping the customer may have caused the customer's death. Therefore, "but-for causation" is another legal principle likely to affect whether the client will be found guilty of involuntary manslaughter.
(Choice C) Inherently dangerous felonies are those that serve as the predicate for felony murder. Here, the client has not been charged with felony murder, and nothing indicates that he was committing a felony when the customer died.
(Choice D) Homicide, regardless of type, is not a strict liability crime.
(Choice E) Transferred intent applies when a defendant acts with the intent to cause harm to one person but harms another person instead (not seen here).
(Choice F) Vicarious liability allows one person to be held responsible for another person's acts. But here, there is no basis to impose vicarious liability on the client.
Educational objective:
Involuntary manslaughter requires proof that the defendant committed the actus reus by (1) a voluntary, conscious act or (2) failing to act despite a legal duty and ability to do so. And an involuntary manslaughter conviction requires proof that the defendant's conduct was the actual ("but for") cause and proximate cause of the victim's death.
- 40 Am. Jur. 2d Homicide § 66 (2026) (discussing causation requirements for homicide).
- 21 Am. Jur. 2d Criminal Law § 31 (2026) (discussing omissions as the basis for crimes).
Integrated Question Set: Task Materials
You are an associate at a criminal defense firm. You are helping the senior partner prepare for a client's criminal trial for felony burglary, felony theft, and making a false report to a law-enforcement officer in violation of Franklin state law. The indictment alleges that the client broke into his former place of employment and stole a company laptop.
Your initial interview with the client was recorded and transcribed in relevant part as follows:
[You]: You're facing burglary and theft charges involving [company]. You work there, correct?
[Client]: I used to work there. I was an executive assistant for two years, but I was fired on Thursday. I had raised some concerns about [company's] development of new artificial intelligence systems. My boss didn't like that, so he terminated me, effective the following Monday. He thought he was doing me a favor by allowing me to finish out the pay period.
[You]: The report says you entered the [company] building that Saturday night. Do you work Saturdays?
[Client]: No, the building is closed on Saturdays. But some custodial employees go in over the weekend if they have access. My boss had given me a key to lock up the office on evenings when he was out of town, and I wanted to pack up my belongings on Saturday, when there would be fewer people in the building. While I was packing, I noticed my boss's laptop on my desk. The IT manager had left it there Friday afternoon because my boss had left the office early.
[You]: Then what happened?
[Client]: Something came over me. My boss never saves anything to the cloud. Everything, including [company's] proprietary information, is stored directly on his laptop. I kept thinking about all the inappropriate jokes my boss had been making about [company] siphoning energy from lower-income areas for its AI operations. So, I took the laptop and added it to a box along with my stuff.
[You]: Did anyone see you leaving the building?
[Client]: The security guard, but he just assumed I was there for work. I waved goodbye like I normally would, walked to my car, and put the box in the trunk. I was so nervous, though, I didn't see the police cruiser in the parking lot. And I didn't notice that the officer was following my car until he pulled me over. I was so scared that all I managed to say was, "I've done nothing wrong." Then he arrested me!
[You]: What were you arrested for? The alleged burglary and theft?
[Client]: No, for running a stop sign—allegedly! The officer ordered me out of the car, handcuffed me, and told me to sit on the hood of the police cruiser. Then, he searched my car.
[You]: Based on the police report, it looks like the officer relied on Franklin Penal Code 204-72 as the basis for the arrest. It also says here that the officer found a folder in the back seat of your car and two laptop computers in the locked trunk.
[Client]: Yes, one of the laptops was actually mine. But when the officer asked about them, I refused to say anything. So, he took me to the police precinct.
End of excerpt
In preparation for the client's trial, you file a pretrial motion to suppress the evidence found in the trunk of the client's car on the grounds that the search of the trunk was unconstitutional. In response, the prosecution files a motion in opposition, arguing that the officer's search of the trunk was lawful. The senior partner asks you to file a response to the prosecution's motion.
Now answer Component 1.
Your client is considering accepting a plea deal for the burglary charge. To determine whether your client is likely to be convicted of burglary at trial, you review Franklin's burglary statute.
Franklin Penal Code § 44.01 provides that an individual commits the offense of burglary if, without the effective consent of the owner, the individual (1) enters a dwelling or building not then open to the public, with intent to commit a felony, theft, or an assault or (2) remains concealed, with intent to commit a felony, theft, or an assault, in a dwelling or building.
Component 1: How should you respond to the prosecution's argument that the search of the trunk was lawful?
The length of the answer should be about two to three sentences.
Answer
Explanation:
Under the Fourth Amendment, a search is unreasonable unless it is conducted with a valid warrant or pursuant to an exception to the warrant requirement. One such exception is for searches made incident to arrest. Under this exception, police may conduct a warrantless search when:
- a person has been lawfully arrested and
- the search is limited to the person's body and areas within the person's immediate reach.
Police may also conduct a warrantless search of a vehicle incident to an arrest if it is reasonable to believe that evidence relevant to the crime of arrest may be found therein (not seen here).
Here, the client was lawfully arrested for running a stop sign pursuant to Franklin law. Under the search incident to arrest exception, the officer was permitted to search the client's body and the areas within his immediate reach. The trunk of the client's car was not within his immediate reach and was locked, and no other exception to the warrant requirement applied.* Therefore, the officer's search of the trunk was unlawful, and any evidence discovered in the trunk should be excluded.
*The automobile exception does not apply because the officer did not have probable cause to believe that the car contained contraband or evidence of criminal activity, as the officer only observed the client run a stop sign.
Educational objective:
Police may conduct a warrantless search incident to arrest when (1) a person has been lawfully arrested and (2) the search is limited to the person's body and areas within the person's immediate reach.
Integrated Question Set: Task Materials
You are an associate at a criminal defense firm. You are helping the senior partner prepare for a client's criminal trial for felony burglary, felony theft, and making a false report to a law-enforcement officer in violation of Franklin state law. The indictment alleges that the client broke into his former place of employment and stole a company laptop.
Your initial interview with the client was recorded and transcribed in relevant part as follows:
[You]: You're facing burglary and theft charges involving [company]. You work there, correct?
[Client]: I used to work there. I was an executive assistant for two years, but I was fired on Thursday. I had raised some concerns about [company's] development of new artificial intelligence systems. My boss didn't like that, so he terminated me, effective the following Monday. He thought he was doing me a favor by allowing me to finish out the pay period.
[You]: The report says you entered the [company] building that Saturday night. Do you work Saturdays?
[Client]: No, the building is closed on Saturdays. But some custodial employees go in over the weekend if they have access. My boss had given me a key to lock up the office on evenings when he was out of town, and I wanted to pack up my belongings on Saturday, when there would be fewer people in the building. While I was packing, I noticed my boss's laptop on my desk. The IT manager had left it there Friday afternoon because my boss had left the office early.
[You]: Then what happened?
[Client]: Something came over me. My boss never saves anything to the cloud. Everything, including [company's] proprietary information, is stored directly on his laptop. I kept thinking about all the inappropriate jokes my boss had been making about [company] siphoning energy from lower-income areas for its AI operations. So, I took the laptop and added it to a box along with my stuff.
[You]: Did anyone see you leaving the building?
[Client]: The security guard, but he just assumed I was there for work. I waved goodbye like I normally would, walked to my car, and put the box in the trunk. I was so nervous, though, I didn't see the police cruiser in the parking lot. And I didn't notice that the officer was following my car until he pulled me over. I was so scared that all I managed to say was, "I've done nothing wrong." Then he arrested me!
[You]: What were you arrested for? The alleged burglary and theft?
[Client]: No, for running a stop sign—allegedly! The officer ordered me out of the car, handcuffed me, and told me to sit on the hood of the police cruiser. Then, he searched my car.
[You]: Based on the police report, it looks like the officer relied on Franklin Penal Code 204-72 as the basis for the arrest. It also says here that the officer found a folder in the back seat of your car and two laptop computers in the locked trunk.
[Client]: Yes, one of the laptops was actually mine. But when the officer asked about them, I refused to say anything. So, he took me to the police precinct.
End of excerpt
In preparation for the client's trial, you file a pretrial motion to suppress the evidence found in the trunk of the client's car on the grounds that the search of the trunk was unconstitutional. In response, the prosecution files a motion in opposition, arguing that the officer's search of the trunk was lawful. The senior partner asks you to file a response to the prosecution's motion.
Now answer Component 2.
The client tells you that he is certain that he did not run the stop sign at the intersection in question. About two months ago, the client was nearly struck by a vehicle that did not stop at that intersection. Since that incident, the client has always stopped his vehicle for at least five seconds before proceeding through the stop sign. The client would like his coworker, who frequently carpooled with the client, to testify for him. The client says that the coworker can attest to the fact that he stops at that particular stop sign for at least five seconds each time.
The senior partner asks you to research whether the coworker's testimony is admissible. You review the following case, which is binding in your jurisdiction:
State v. Dennis
Franklin Court of Appeal (2019)
Defendant was convicted of unauthorized access to confidential government information stored on the firm's database at trial after the trial court judge denied his motion in limine. Defendant's motion in limine sought to exclude testimony from Defendant's supervisor. The supervisor testified that Defendant customarily clocked into work precisely at 7:58 a.m. each weekday for the past three years and immediately logged into the firm's secure database upon arrival. In response to the motion in limine, the prosecution argued that this habitual conduct supported its contention that Defendant was the individual who accessed the restricted files at approximately 8:00 a.m. on the day in question. The trial court, finding this argument persuasive, denied Defendant's motion. Defendant appeals, arguing that evidence of his routine was inadmissible character evidence.
Under Franklin Rule of Evidence 406, evidence of a person's habit or an organization's routine practice is admissible to prove that, on a particular occasion, the person or organization acted in accordance with the habit or routine.
This court distinguishes habit from character. Unlike character, which describes a generalized disposition such as being honest or careful, habit refers to a regular, specific response to a repeated situation. In addition to the supervisor's testimony, Defendant's precise arrival time and immediate login pattern were electronically documented. According to both the supervisor's testimony and the electronic documentation, this habit spanned a period of nearly 1,000 days. This corroborates that Defendant's actions constitute a "semi-automatic response sufficient to establish a routine practice." Accordingly, the court AFFIRMS the trial court's denial of Defendant's motion to exclude this habit evidence. The testimony is admissible under Franklin Rule of Evidence 406 to show that Defendant likely followed his usual routine on the day in question.
End of opinion
Component 2: Which of the following facts is likely to be dispositive of whether the client can be convicted of burglary?
Select one response option.
- The client entered the building while it was closed to the public.
- The client intended to retrieve his belongings when he entered the building.
- The client took the boss's laptop from the building.
- The client's boss gave the client the key that he used to enter the building.
Explanation:
A fact is dispositive to the analysis of a legal issue if its presence or absence under the facts of the case at hand independently resolves the legal issue. In general, the prosecution must prove three elements beyond a reasonable doubt to convict a defendant of a crime:
- Actus reus – a wrongful act or conduct
- Mens rea – an individual's mental state or guilty mind*
- Causation – a causal connection between the act or conduct and the result
In this jurisdiction, Franklin Penal Code § 44.01 defines burglary as:
- entry into, or remaining concealed within, a dwelling or building not then open to the public
- without the effective consent of the owner
- with intent to commit a felony , theft, or assault.
An entry occurs when any part of a person's body (or an object in the person's control) crosses into the structure. And that entry is unlawful if it occurred without permission from the rightful possessor or legal privilege (i.e., actus reus). But it only amounts to burglary if the person had the specific intent to commit a felony, theft, or assault inside (i.e., mens rea).**
Here, the client entered the building while it was closed to the public and likely committed the crime of theft when he took his boss's laptop (Choices A and C). However, the client did not enter the building with the specific intent to steal the laptop—instead, he entered to retrieve his own belongings. Because this fact shows that the client lacked the requisite intent for burglary, it is likely to be dispositive of whether he can be convicted of burglary.
*There is an exception to this general rule for strict-liability crimes, which do not have a mens rea requirement (not seen here).
**Similarly, common-law burglary requires the defendant to enter a dwelling with the specific intent to commit a felony inside the dwelling. Many states have broadened the scope of the crimes intended to be committed to include misdemeanor thefts.
(Choice D) The client's boss gave him the key that he used to enter the building. But the client's use of the key on the night of the theft exceeded the boss's consent because he was only supposed to use the key to lock the office. Accordingly, the client did not have consent to use the key to enter the building the night of the theft.
Educational objective:
A fact is dispositive to the analysis of a legal issue if its presence or absence under the facts of the case at hand independently resolves the legal issue. A defendant who lacks the requisite intent to commit a crime cannot be convicted of that crime.
Integrated Question Set: Task Materials
You are an associate at a criminal defense firm. You are helping the senior partner prepare for a client's criminal trial for felony burglary, felony theft, and making a false report to a law-enforcement officer in violation of Franklin state law. The indictment alleges that the client broke into his former place of employment and stole a company laptop.
Your initial interview with the client was recorded and transcribed in relevant part as follows:
[You]: You're facing burglary and theft charges involving [company]. You work there, correct?
[Client]: I used to work there. I was an executive assistant for two years, but I was fired on Thursday. I had raised some concerns about [company's] development of new artificial intelligence systems. My boss didn't like that, so he terminated me, effective the following Monday. He thought he was doing me a favor by allowing me to finish out the pay period.
[You]: The report says you entered the [company] building that Saturday night. Do you work Saturdays?
[Client]: No, the building is closed on Saturdays. But some custodial employees go in over the weekend if they have access. My boss had given me a key to lock up the office on evenings when he was out of town, and I wanted to pack up my belongings on Saturday, when there would be fewer people in the building. While I was packing, I noticed my boss's laptop on my desk. The IT manager had left it there Friday afternoon because my boss had left the office early.
[You]: Then what happened?
[Client]: Something came over me. My boss never saves anything to the cloud. Everything, including [company's] proprietary information, is stored directly on his laptop. I kept thinking about all the inappropriate jokes my boss had been making about [company] siphoning energy from lower-income areas for its AI operations. So, I took the laptop and added it to a box along with my stuff.
[You]: Did anyone see you leaving the building?
[Client]: The security guard, but he just assumed I was there for work. I waved goodbye like I normally would, walked to my car, and put the box in the trunk. I was so nervous, though, I didn't see the police cruiser in the parking lot. And I didn't notice that the officer was following my car until he pulled me over. I was so scared that all I managed to say was, "I've done nothing wrong." Then he arrested me!
[You]: What were you arrested for? The alleged burglary and theft?
[Client]: No, for running a stop sign—allegedly! The officer ordered me out of the car, handcuffed me, and told me to sit on the hood of the police cruiser. Then, he searched my car.
[You]: Based on the police report, it looks like the officer relied on Franklin Penal Code 204-72 as the basis for the arrest. It also says here that the officer found a folder in the back seat of your car and two laptop computers in the locked trunk.
[Client]: Yes, one of the laptops was actually mine. But when the officer asked about them, I refused to say anything. So, he took me to the police precinct.
End of excerpt
In preparation for the client's trial, you file a pretrial motion to suppress the evidence found in the trunk of the client's car on the grounds that the search of the trunk was unconstitutional. In response, the prosecution files a motion in opposition, arguing that the officer's search of the trunk was lawful. The senior partner asks you to file a response to the prosecution's motion.
Now answer Component 3.
The client has no desire to testify at trial. However, in response to the theft charge, the client would like to offer testimony from the minister of his church that the client is known in the community as a charitable person. You are unsure whether this is permissible, so you review the relevant rules of evidence, which read as follows:
Franklin Rules of Evidence
Rule 404
(1) Prohibited Character Evidence. Evidence of a person's character or character trait is not admissible to prove that, on a particular occasion, the person acted in accordance with the character or trait.
(2) Exceptions for Defendants in Criminal Cases. The following exceptions apply in criminal cases:
(a) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; or
(b) a defendant may offer evidence of the defendant's truthfulness if the defendant testifies at trial and the defendant's truthful character has been attacked.
Rule 405
(1) When evidence of a person's character or character trait is admissible, it may be proved by the following:
(a) By Reputation or Opinion. Testimony about the person's reputation or testimony in the form of an opinion.
(b) Specific Instances of Conduct. When a person's character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.
End of excerpt
Component 3: List two facts in the client's matter that are distinct from the legally significant facts in State v. Dennis.
Provide one answer in each answer field. The length of each answer should be about one sentence or phrase.
Answer
The facts in a judicial opinion may be analogous to or distinct from the legally significant facts of a client's case. After identifying a case's holding and dispositive facts, you should determine how the law set out in the judicial opinion may impact the client's case by identifying analogous and distinct facts. Identifying relevant facts that distinguish a client's matter from a matter previously before the court can help lawyers to predict whether a court may decide the client's matter differently.
In State v. Dennis, the supervisor's testimony was admissible habit evidence in part because it was corroborated by electronic documentation of the defendant's arrival time and login patterns. This is distinct from the client's matter because the client has no other evidence corroborating his coworker's testimony that he always stopped at a particular stop sign for at least five seconds.
Additionally, in Dennis, the defendant's habit of clocking in at 7:58 a.m. and immediately logging into the firm's secure database spanned a period of three years (or nearly 1,000 days). This is distinct from the client's matter because the client has only been stopping at the stop sign for at least five seconds for the past two months.
Educational objective:
The facts in a judicial opinion may be analogous to or distinct from the legally significant facts of a client's case. Identifying these facts helps determine how the law set out in the judicial opinion may impact the client's case.
Integrated Question Set: Task Materials
You are an associate at a criminal defense firm. You are helping the senior partner prepare for a client's criminal trial for felony burglary, felony theft, and making a false report to a law-enforcement officer in violation of Franklin state law. The indictment alleges that the client broke into his former place of employment and stole a company laptop.
Your initial interview with the client was recorded and transcribed in relevant part as follows:
[You]: You're facing burglary and theft charges involving [company]. You work there, correct?
[Client]: I used to work there. I was an executive assistant for two years, but I was fired on Thursday. I had raised some concerns about [company's] development of new artificial intelligence systems. My boss didn't like that, so he terminated me, effective the following Monday. He thought he was doing me a favor by allowing me to finish out the pay period.
[You]: The report says you entered the [company] building that Saturday night. Do you work Saturdays?
[Client]: No, the building is closed on Saturdays. But some custodial employees go in over the weekend if they have access. My boss had given me a key to lock up the office on evenings when he was out of town, and I wanted to pack up my belongings on Saturday, when there would be fewer people in the building. While I was packing, I noticed my boss's laptop on my desk. The IT manager had left it there Friday afternoon because my boss had left the office early.
[You]: Then what happened?
[Client]: Something came over me. My boss never saves anything to the cloud. Everything, including [company's] proprietary information, is stored directly on his laptop. I kept thinking about all the inappropriate jokes my boss had been making about [company] siphoning energy from lower-income areas for its AI operations. So, I took the laptop and added it to a box along with my stuff.
[You]: Did anyone see you leaving the building?
[Client]: The security guard, but he just assumed I was there for work. I waved goodbye like I normally would, walked to my car, and put the box in the trunk. I was so nervous, though, I didn't see the police cruiser in the parking lot. And I didn't notice that the officer was following my car until he pulled me over. I was so scared that all I managed to say was, "I've done nothing wrong." Then he arrested me!
[You]: What were you arrested for? The alleged burglary and theft?
[Client]: No, for running a stop sign—allegedly! The officer ordered me out of the car, handcuffed me, and told me to sit on the hood of the police cruiser. Then, he searched my car.
[You]: Based on the police report, it looks like the officer relied on Franklin Penal Code 204-72 as the basis for the arrest. It also says here that the officer found a folder in the back seat of your car and two laptop computers in the locked trunk.
[Client]: Yes, one of the laptops was actually mine. But when the officer asked about them, I refused to say anything. So, he took me to the police precinct.
End of excerpt
In preparation for the client's trial, you file a pretrial motion to suppress the evidence found in the trunk of the client's car on the grounds that the search of the trunk was unconstitutional. In response, the prosecution files a motion in opposition, arguing that the officer's search of the trunk was lawful. The senior partner asks you to file a response to the prosecution's motion.
Now answer Component 4.
The client's misdemeanor charge of making a false report to a law-enforcement officer consists of knowingly making a false statement to a peace officer or law-enforcement employee during an investigation.
According to the client, after he was Mirandized during his arrest, a police officer asked him why they found his boss's laptop in his trunk. The client told the officer that both laptops were his. After a short investigation, officers alleged that the client was lying about the laptops belonging to him and charged him with making a false report to a law-enforcement officer.
The client asks you whether his wife can testify about his honesty to defend against this charge. The wife plans to testify that the client once returned $10,000 that had been mistakenly deposited in his bank account to show his propensity for truthfulness.
Component 4: In order to offer the minister's testimony about the client's charitable nature in response to the theft charge, what must you first demonstrate?
The length of the answer should be about one sentence or phrase.
Answer
Explanation:
Under Rule 404 of the Franklin Rules of Evidence (which mirror the Federal Rules of Evidence), a criminal defendant may offer evidence of his good character when:
- the defendant's trait is pertinent to the charged crime or
- the defendant testifies and his character for truthfulness is attacked on cross-examination (not seen here).
Here, the client does not intend to testify. However, in response to the theft charge, the client would like to offer testimony from his minister about his charitable nature. To offer this testimony under Rule 404, you must first demonstrate that the client's charitable nature is pertinent to the crime of theft.
Educational objective:
A criminal defendant may offer evidence of his good character if that trait is pertinent to the crime charged.
Integrated Question Set: Task Materials
You are an associate at a criminal defense firm. You are helping the senior partner prepare for a client's criminal trial for felony burglary, felony theft, and making a false report to a law-enforcement officer in violation of Franklin state law. The indictment alleges that the client broke into his former place of employment and stole a company laptop.
Your initial interview with the client was recorded and transcribed in relevant part as follows:
[You]: You're facing burglary and theft charges involving [company]. You work there, correct?
[Client]: I used to work there. I was an executive assistant for two years, but I was fired on Thursday. I had raised some concerns about [company's] development of new artificial intelligence systems. My boss didn't like that, so he terminated me, effective the following Monday. He thought he was doing me a favor by allowing me to finish out the pay period.
[You]: The report says you entered the [company] building that Saturday night. Do you work Saturdays?
[Client]: No, the building is closed on Saturdays. But some custodial employees go in over the weekend if they have access. My boss had given me a key to lock up the office on evenings when he was out of town, and I wanted to pack up my belongings on Saturday, when there would be fewer people in the building. While I was packing, I noticed my boss's laptop on my desk. The IT manager had left it there Friday afternoon because my boss had left the office early.
[You]: Then what happened?
[Client]: Something came over me. My boss never saves anything to the cloud. Everything, including [company's] proprietary information, is stored directly on his laptop. I kept thinking about all the inappropriate jokes my boss had been making about [company] siphoning energy from lower-income areas for its AI operations. So, I took the laptop and added it to a box along with my stuff.
[You]: Did anyone see you leaving the building?
[Client]: The security guard, but he just assumed I was there for work. I waved goodbye like I normally would, walked to my car, and put the box in the trunk. I was so nervous, though, I didn't see the police cruiser in the parking lot. And I didn't notice that the officer was following my car until he pulled me over. I was so scared that all I managed to say was, "I've done nothing wrong." Then he arrested me!
[You]: What were you arrested for? The alleged burglary and theft?
[Client]: No, for running a stop sign—allegedly! The officer ordered me out of the car, handcuffed me, and told me to sit on the hood of the police cruiser. Then, he searched my car.
[You]: Based on the police report, it looks like the officer relied on Franklin Penal Code 204-72 as the basis for the arrest. It also says here that the officer found a folder in the back seat of your car and two laptop computers in the locked trunk.
[Client]: Yes, one of the laptops was actually mine. But when the officer asked about them, I refused to say anything. So, he took me to the police precinct.
End of excerpt
In preparation for the client's trial, you file a pretrial motion to suppress the evidence found in the trunk of the client's car on the grounds that the search of the trunk was unconstitutional. In response, the prosecution files a motion in opposition, arguing that the officer's search of the trunk was lawful. The senior partner asks you to file a response to the prosecution's motion.
Now answer Component 5.
Before the matter proceeds to trial, you negotiate a plea deal on the client's behalf. Pursuant to the plea deal, the prosecution agrees to dismiss the burglary and false report charges. In exchange, the client pleads guilty to felony theft and is sentenced to six months of house arrest. Two months after the court accepts the plea deal, the client is served with a civil complaint from the company for conversion of the stolen laptop.
After filing a timely answer on the client's behalf, you begin discussing trial strategy with the senior partner. The senior partner believes that the company will not be able to demonstrate that conversion occurred because the laptop was not destroyed. The senior partner is concerned that the company's attorney may introduce evidence of the client's felony theft conviction to demonstrate that he committed the civil offense of conversion. Although you admit that the client's conviction is relevant to the company's conversion claim, you would like to prevent the underlying facts of the conviction from being discussed at trial. The senior partner suggests stipulating to the fact that the client took the laptop from the office.
Component 5: Is the wife's testimony likely to be admissible?
Select one response option.
- No, because the client's good character cannot be proved with a specific instance of conduct.
- No, because the wife's testimony is not relevant.
- Yes, because the client's character is an essential element of the charged offense.
- Yes, because truthfulness is pertinent trait that is at issue.
Explanation:
Under Franklin Rule of Evidence 404, a criminal defendant may offer evidence of his good character when the trait is pertinent to the charged crime. For example, evidence of a defendant's truthfulness is admissible when the defendant is charged with a crime involving dishonesty (e.g., making a false report to a law-enforcement officer). Such evidence may be introduced only through reputation or opinion testimony.
Additionally, under Franklin Rule of Evidence 405, any defendant, civil or criminal, may offer evidence in the form of a specific instance of conduct if character or a character trait is an essential element of a charge, claim, or defense. A defendant's character is an essential element if it is an element that must be proved by the opposing party.
Here, the wife wants to testify that the client once returned $10,000 that had been mistakenly deposited into his bank account to show his propensity for truthfulness (i.e., a specific instance of conduct). While truthfulness is pertinent to the false report charge, the client's character is not an essential element of this charge and thus cannot be proved with a specific instance of conduct (Choices C and D). As a result, the wife's testimony is unlikely to be admissible.
(Choice B) Relevant evidence tends to make a material fact more or less probable. While the wife's proposed testimony is relevant, evidence of the client's truthfulness can only be proved through reputation or opinion testimony because truthfulness is pertinentābut not essentialāto the crime charged.
Educational objective:
A criminal defendant may offer evidence of his good character if the trait is pertinent to the crime charged. Such evidence must be introduced through either reputation or opinion testimony.
Integrated Question Set: Task Materials
You are an associate at a criminal defense firm. You are helping the senior partner prepare for a client's criminal trial for felony burglary, felony theft, and making a false report to a law-enforcement officer in violation of Franklin state law. The indictment alleges that the client broke into his former place of employment and stole a company laptop.
Your initial interview with the client was recorded and transcribed in relevant part as follows:
[You]: You're facing burglary and theft charges involving [company]. You work there, correct?
[Client]: I used to work there. I was an executive assistant for two years, but I was fired on Thursday. I had raised some concerns about [company's] development of new artificial intelligence systems. My boss didn't like that, so he terminated me, effective the following Monday. He thought he was doing me a favor by allowing me to finish out the pay period.
[You]: The report says you entered the [company] building that Saturday night. Do you work Saturdays?
[Client]: No, the building is closed on Saturdays. But some custodial employees go in over the weekend if they have access. My boss had given me a key to lock up the office on evenings when he was out of town, and I wanted to pack up my belongings on Saturday, when there would be fewer people in the building. While I was packing, I noticed my boss's laptop on my desk. The IT manager had left it there Friday afternoon because my boss had left the office early.
[You]: Then what happened?
[Client]: Something came over me. My boss never saves anything to the cloud. Everything, including [company's] proprietary information, is stored directly on his laptop. I kept thinking about all the inappropriate jokes my boss had been making about [company] siphoning energy from lower-income areas for its AI operations. So, I took the laptop and added it to a box along with my stuff.
[You]: Did anyone see you leaving the building?
[Client]: The security guard, but he just assumed I was there for work. I waved goodbye like I normally would, walked to my car, and put the box in the trunk. I was so nervous, though, I didn't see the police cruiser in the parking lot. And I didn't notice that the officer was following my car until he pulled me over. I was so scared that all I managed to say was, "I've done nothing wrong." Then he arrested me!
[You]: What were you arrested for? The alleged burglary and theft?
[Client]: No, for running a stop sign—allegedly! The officer ordered me out of the car, handcuffed me, and told me to sit on the hood of the police cruiser. Then, he searched my car.
[You]: Based on the police report, it looks like the officer relied on Franklin Penal Code 204-72 as the basis for the arrest. It also says here that the officer found a folder in the back seat of your car and two laptop computers in the locked trunk.
[Client]: Yes, one of the laptops was actually mine. But when the officer asked about them, I refused to say anything. So, he took me to the police precinct.
End of excerpt
In preparation for the client's trial, you file a pretrial motion to suppress the evidence found in the trunk of the client's car on the grounds that the search of the trunk was unconstitutional. In response, the prosecution files a motion in opposition, arguing that the officer's search of the trunk was lawful. The senior partner asks you to file a response to the prosecution's motion.
Now answer Component 6.
Component 6: Briefly explain why the underlying facts of the client's theft conviction may still be admitted despite a stipulation of facts admitting that he took the laptop from the office.
The length of the answer should be about one to two sentences.
Answer
Submit
Explanation:
Relevant evidence (i.e., evidence that tends to make a material fact more or less probable) is admissible unless otherwise provided by law or other evidentiary rules. For example, Federal Rule of Evidence 403 bars the admission of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice.
When determining the probative value of evidence, the court should consider the availability of other evidence to establish the same fact (e.g., stipulating to the fact of conviction instead of admitting a defendant's record of conviction). But the availability of other evidence establishing the same fact will not preclude the admission of relevant evidence unless the danger of prejudice substantially outweighs the probative value of the additional evidence.
Here, you are considering stipulating that the client took the laptop from the office to avoid the underlying facts of his theft conviction from being introduced into evidence at trial. However, even if the parties stipulate to this fact, the facts underlying the client's theft conviction may still be admitted unless you can demonstrate that the danger posed by admission of the conviction substantially outweighs its probative value.
Educational objective:
The availability of other
evidence establishing the same fact will not preclude the admission of
relevant evidence unless the danger of prejudice substantially outweighs
the probative value of its admission.
Frequently Asked Questions (FAQs)
How many Criminal Law & Procedure questions are on the MBE?
Out of the 175 scored questions on the MBE, 25 are dedicated to Criminal Law & Procedure. Constitutional protections of accused persons accounts for approximately 12 to 13 of those 25 questions, making it the most heavily tested topic within this subject.
How many Criminal Law questions are on the NextGen UBE?
The NextGen UBE tests criminal law knowledge differently than the MBE. While some questions resemble traditional multiple-choice formats, others appear in integrated question sets that require examinees to apply statutes, analyze police reports or interview excerpts, and demonstrate lawyering skills such as issue spotting, investigation, and legal writing.
What are the 5 Criminal Law & Procedure topics covered on the MBE?
The MBE Criminal Law & Procedure section is divided into 5 topics: homicide, other crimes, inchoate crimes and parties, general principles, and constitutional protections of accused persons. Each of the first 4 categories accounts for approximately 12.5% of the subjectās questions, while constitutional protections of accused persons accounts for 50%.
What topics are covered in Criminal Law and Constitutional Protections of Accused Persons on the NextGen UBE?
The NextGen UBE covers 4 topics in this subject: general principles, statutory crimes, inchoate crimes and parties, and constitutional protections of accused persons. Unlike the MBE, on the NextGen UBE, some questions will provide legal resources such as statutes that examinees must read and apply directly. The NCBE has not published exact percentage weights for each NextGen topic.
What are the most tested topics in MBE Criminal Law & Procedure?
The most heavily tested topics in MBE Criminal Law & Procedure are constitutional protections of accused persons, homicide, the insanity defense, Fourth Amendment search and seizure, and Fifth Amendment Miranda rights. Constitutional protections alone account for half of all Criminal Law & Procedure questions on the MBE, making the Fourth, Fifth, and Sixth Amendments the highest-priority topic in this subject.
What is the NextGen bar exam equivalent for Criminal Law & Procedure?
On the NextGen UBE, this subject is called Criminal Law and Constitutional Protections of Accused Persons. The name reflects an expanded emphasis on both substantive criminal law and the constitutional framework governing the criminal process. The NextGen Content Scope Outline also lists statutory crimes as a distinct topic that includes offenses such as DUI and vehicular manslaughter, which are not separately listed in the MBE outline.
How is Criminal Law & Procedure tested differently on the NextGen UBE?
The NextGen UBE tests this subject through multiple question formats, including multiple-choice questions, integrated question sets, and longer writing tasks. Unlike the MBE, some NextGen questions provide legal resources such as statutes or case law that examinees must read and apply rather than relying solely on memorized rules. The exam also assesses lawyering skills such as issue spotting, statutory analysis, and written legal analysis alongside doctrinal knowledge.
Do I need to study both MBE and NextGen Criminal Law content?
This depends on which exam your jurisdiction is administering. A growing number of jurisdictions are transitioning to the NextGen UBE beginning July 2026, while others will continue administering the MBE through February 2028. Check our NextGen UBE jurisdictions guide to confirm which exam your jurisdiction is administering. The foundational criminal law and constitutional procedure knowledge required for the MBE remains directly relevant to the NextGen UBE, so preparation for one format builds a strong base for the other.
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References
- National Conference of Bar Examiners. (2023). MBE subject matter outline.
Retrieved from https://www.ncbex.org/dmsdocument/17
- National Conference of Bar Examiners. (2025). NextGen UBE content scope: July 2026-February 2027.
Retrieved from https://www.ncbex.org/sites/default/files/2025-07/NCBE%20NextGen%20UBE%20Content%20Scope-Aug%202025.pdf
