Criminal Procedure on the Bar Exam: Fourth, Fifth, and Sixth Amendment Essentials

Criminal Procedure is a regular MEE subject and overlaps with Constitutional Law on the MBE. The subject is built around three amendments: the Fourth (search and seizure), the Fifth (self-incrimination), and the Sixth (right to counsel).

Fourth Amendment: Search and Seizure

The Fourth Amendment protects against unreasonable searches and seizures by the government. It requires probable cause and, generally, a warrant.

What Counts as a Search?

A search occurs when the government violates a person's reasonable expectation of privacy (Katz test): (1) the person exhibited a subjective expectation of privacy, and (2) society recognizes that expectation as reasonable.

Not a search: Open fields, items in plain view, things exposed to the public (garbage on the curb, what can be seen from a public vantage point), information shared with third parties (bank records, phone numbers dialed — the third-party doctrine).

Warrant Requirements

A valid warrant requires: probable cause, supported by oath or affirmation, describing with particularity the place to be searched and the items to be seized, issued by a neutral and detached magistrate.

Exceptions to the Warrant Requirement

These are the most tested rules in Criminal Procedure:

Search incident to lawful arrest: Officers may search the person and the area within the arrestee's immediate control (wingspan). For vehicles, Arizona v. Gant limits this: officers may search the vehicle incident to arrest only if the arrestee could access the vehicle at the time of the search or if the vehicle likely contains evidence of the crime of arrest.

Automobile exception: If officers have probable cause to believe a vehicle contains contraband or evidence, they may search the entire vehicle and any container within it without a warrant.

Plain view: Officers may seize evidence in plain view if they are lawfully present and the incriminating nature of the item is immediately apparent.

Consent: A search is valid if a person with actual or apparent authority voluntarily consents. Consent can be withdrawn at any time.

Terry stop and frisk: Officers may briefly detain a person based on reasonable suspicion of criminal activity (less than probable cause). A limited pat-down for weapons is permitted if the officer reasonably believes the person is armed and dangerous.

Exigent circumstances: Officers may enter without a warrant when there is an emergency — hot pursuit, imminent destruction of evidence, or risk of harm to persons inside.

Inventory searches: Routine inventory searches of impounded vehicles and arrested persons' belongings are permitted if conducted pursuant to standardized procedures.

Exclusionary Rule

Evidence obtained in violation of the Fourth Amendment is inadmissible at trial (fruit of the poisonous tree). Exceptions:

• Independent source
• Inevitable discovery
• Attenuation of the taint (passage of time, intervening circumstances)
• Good faith reliance on a warrant later found invalid (Leon)

The exclusionary rule does not apply in grand jury proceedings, civil cases, or deportation hearings.

Fifth Amendment: Self-Incrimination

Miranda Rights

Before custodial interrogation, officers must inform the suspect of the right to remain silent, that anything said can be used against them, the right to an attorney, and that an attorney will be appointed if the suspect cannot afford one.

Custody: A reasonable person in the suspect's position would not feel free to leave. Not every police encounter is custody.

Interrogation: Express questioning or its functional equivalent — words or actions the police should know are reasonably likely to elicit an incriminating response.

Invoking rights: The suspect must clearly and unambiguously invoke the right to silence or counsel. If the suspect invokes the right to counsel, all questioning must cease until an attorney is present or the suspect reinitiates communication. If the suspect invokes the right to silence, officers must scrupulously honor the request but may re-approach after a significant break.

Waiver: Must be knowing, voluntary, and intelligent. The prosecution bears the burden of proving a valid waiver.

Fifth Amendment Privilege Beyond Miranda

The privilege against self-incrimination applies in any proceeding — criminal, civil, administrative — where the testimony might incriminate the witness. It protects only testimonial evidence, not physical evidence (blood draws, handwriting samples, lineups).

Sixth Amendment: Right to Counsel

The Sixth Amendment right to counsel attaches once adversarial judicial proceedings begin (indictment, arraignment, preliminary hearing). It is offense-specific — the right to counsel for one charge does not extend to questioning about a separate, unrelated charge.

Key distinction from Fifth Amendment right to counsel: Miranda's right to counsel exists during custodial interrogation regardless of whether charges have been filed. The Sixth Amendment right to counsel is triggered by the initiation of formal proceedings.

Effective Assistance of Counsel

A defendant has the right to effective assistance. To prevail on an ineffectiveness claim (Strickland): (1) counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that the result would have been different but for counsel's deficient performance.

Identification Procedures

Lineups and showups after formal charges: The Sixth Amendment right to counsel applies. The defendant is entitled to have counsel present.

Photo identifications: No right to counsel, regardless of when they occur.

Due process: Any identification procedure that is unnecessarily suggestive and creates a substantial likelihood of misidentification violates due process.

Study Strategy

Criminal Procedure is one of the most fact-pattern-dependent subjects. The right answer turns on small details: was the suspect in custody? Did they unambiguously invoke counsel? Was the search within the wingspan? Build a decision tree for Fourth Amendment issues: was there government action? Was there a search? Was there a warrant? If not, does an exception apply?