Criminal Law on the MEE: What to Know and How to Practice

Substantive criminal law on the MEE focuses heavily on homicide. You need to distinguish between first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter. The facts will typically present a killing and require you to determine the appropriate charge based on the defendant's mental state: premeditation, intent to kill, depraved heart, heat of passion, or criminal negligence.

Inchoate crimes are the second major testing area. Attempt, conspiracy, and solicitation each have distinct elements, and MEE questions often test whether the defendant has gone far enough to be guilty of attempt or whether an agreement qualifies as conspiracy. Accomplice liability (aiding and abetting) frequently appears alongside these issues.

Criminal procedure questions focus on the Fourth Amendment (search and seizure, warrant requirements, exceptions like consent, search incident to arrest, the automobile exception, plain view, and exigent circumstances), the Fifth Amendment (Miranda rights, privilege against self-incrimination, the voluntariness of confessions), and the Sixth Amendment (right to counsel at critical stages, the Massiah doctrine). These constitutional issues are often combined with substantive criminal law issues in a single fact pattern.

For substantive criminal law questions, start by identifying the crime charged or the conduct at issue, then analyze each element. For homicide, the key analytical move is matching the defendant's mental state to the correct grade of the offense. Walk through the facts that support or undercut each mental state. If defenses are raised (self-defense, insanity, intoxication), address them after establishing the prima facie case.

For criminal procedure questions, identify the constitutional amendment at issue and apply the relevant test. For Fourth Amendment issues, determine whether a search occurred, whether a warrant was required, and whether any exception applies (consent, search incident to arrest, exigent circumstances, automobile exception). State the rule precisely, then apply it to the specific facts.

Jumping to a conclusion on homicide grade. The facts are designed to make the correct charge ambiguous. Do not label the crime in your first sentence and then backfill analysis to support it. Instead, walk through each possible grade of homicide, analyze the mental state evidence for each, and explain which grade the facts best support. Graders award points for the analytical process, not just the label.

Forgetting to address defenses. After establishing the elements of the crime, always check whether the facts raise any defense. Self-defense, insanity (know the M'Naghten test), intoxication (voluntary vs. involuntary, and which crimes it negates), and duress are the most commonly tested. If the facts include information about the defendant's state of mind or the circumstances of the encounter, a defense is likely being tested.

Misstating Miranda requirements. Miranda warnings are required only during "custodial interrogation." Many examinees apply Miranda whenever police ask questions, but Miranda does not apply to non-custodial encounters or volunteered statements. Be precise about when custody begins and what constitutes interrogation.

Not addressing the exclusionary rule. When a Fourth or Fifth Amendment violation occurs, state the consequence: evidence obtained in violation of these rights is inadmissible under the exclusionary rule. Also address whether the fruit of the poisonous tree doctrine extends the suppression to derivative evidence. Examinees who identify the violation but fail to state the remedy lose points.

Use precise vocabulary. Graders scan for specific terms. For Miranda, include "custodial interrogation" and "knowing, intelligent, and voluntary waiver." For Fourth Amendment, include "reasonable expectation of privacy" and name the specific warrant exception. For homicide, use "premeditation and deliberation," "depraved heart," or "heat of passion" as appropriate. Including these phrases makes it easy for graders to award points.

Analyze each element separately. For inchoate crimes, break down each element. For attempt, discuss (1) intent to commit the underlying crime and (2) a substantial step beyond mere preparation. For conspiracy, discuss (1) an agreement between two or more persons, (2) intent to agree, (3) intent to achieve the objective, and in some jurisdictions (4) an overt act. Do not lump elements together.

Look for accomplice liability. When the fact pattern involves multiple people, check whether anyone aided, abetted, or encouraged the crime. Accomplice liability is a frequent secondary issue that many examinees miss. State the elements: intent to assist and intent that the underlying crime be committed.

Address both substantive and procedural issues. Criminal Law and Procedure MEE questions often test both in a single fact pattern. If the facts describe an arrest, interrogation, and then a crime, you likely need to address the procedural issues (was the search lawful? were Miranda warnings given?) and the substantive issues (what crime was committed? what defenses apply?). Cover both.