Criminal Procedure

Resource Guide

The concepts embodied in criminal procedure influence the way a case is handled from the moment criminal behavior is suspected by police until a defendant has fulfilled the requirements of his or her sentence. While the U.S. Constitution identifies some inalienable rights of a criminal, such as the right to remain silent and the right to counsel, states may freely grant rights that are unique. It is expected that courts and legislatures continue to clarify and debate issues of expanded discovery as more cases and statutes become available.

Links to related online resources are listed below. Non-digitized publications may be borrowed from the NCSC Library; call numbers are provided.


Featured Resource

Tracey Maclin and Jennifer Rader. No More Chipping Away: The Roberts Courts Uses an Axe to Take Out the Fourth Amendment Exclusionary Rule. (2012).

The modern Supreme Court no longer sees the Exclusionary Rule as anchored by the Fourth Amendment itself.  The Court now envisions the rule in strictly instrumental terms and not in remedial terms the way the Framers thought about remedies for rights violations.

Kathy Pezdek. A Preliminary Study of How Plea Bargaining Decisions by Prosecution and Defense Attorneys Are Affected by Eyewitness Factors. (2012). National Institute of Justice.

This preliminary study attempted to assess how appraisals of the strength of eyewitness evidence affect plea bargaining decisions by prosecutors and defense attorneys.

Scott R. Grubman. Bark with No Bite: How the Inevitable Discovery Rule is Undermining the Supreme Court's Decision in Arizona v. Grant. (2011). The Journal of Criminal Law & Criminology, vol. 101, no. 1

In 2009, the Supreme Court issued its decision in Arizona v. Gant, in which it significantly limited the search incident to arrest exception in the automobile search context. This article discusses why the Court’s decision in Gant lacks real-world, practical effect, and how the Court can close the loophole in its Gant holding.

Scott E. Sundby and Lucy B. Ricca The Majestic and the Mundane: The Two Creation Stories of the Exclusionary Rule. (2010). Texas Tech Law Review, vol. 43.

The Supreme Court‟s decision in Herring v. United States resurrected the debate over the future of the exclusionary rule in American criminal procedure. This Article will look at the changing perception of the rule as illustrated by Justices Roberts and Ginsburg‟s contrasting views.

General

D. Michael Risinger and Lesley C. Risinger Innocence is Different: Taking Innocence into Account in Reforming Criminal Procedure. (2011). New York Law School Law Review, vol. 56.

In this paper the authors attempt an overview of what an “innocentric” system would look like, and what changes would be required to reform our current practices to come as close to such a system as possible.

Criminal Caseloads. (2011). Research Division, Conference of State Court Administrators, Bureau of Justice Statistics, and the NCSC.

Criminal section from Examining the Work of State Courts: An Analysis of 2009 State Court Caseloads.

Criminal Case Reporting. (2009). Research Division, NCSC and Conference of State Court Administrators.

Criminal section from State Court Guide to Statistical Reporting.

Steelman, David, et. al. Felony Case Management in Bernalillo County, New Mexico. (November 2009).

This report was prepared under a February 2009 agreement between the National Center for State Courts and the Bernalillo County for a study of felony case processing in the Second Judicial District Court of New Mexico.

Diana Linn-Cook and Tammy Phillips. National Instant Criminal Background Check System. (2009).

Presentation from the Twenty-fifth Anniversary of the National Court Technology Conference.  Overview of the history and process of NICS.

Issue: Criminal - Adult. (2008).

Government Relations describes the impact, position, and summary on the issue of Limitations on Federal Review of State Criminal Convictions in Congress.

Cheesman, Fred, Brian Ostrom, Roger Hanson. A Tale of Two Laws Revisted: Investigating the Impact of Prisoner Litigation Reform Act and the Antiterrorism and Effective Death Penalty. (January 2004). 103 pages.

The purpose of this research is to evaluate the impact of the PLRA and the AEDPA. The goal was to determine the extent to which AEDPA and the PLRA have affected the number of habeas corpus petitions and prisoner lawsuits filed, respectively.

Criminal Discovery

Expanded Discovery in Criminal Cases. (2007). The Justice Project In this report the Justice Project offers recommendations and solutions for expanding discovery law.  It includes information on discovery procedures, statutes, court rules, case studies, states that have enacted expanded discovery legislation, voices of support, and a model policy.
Discovery in New York Criminal Courts: Survey Report and Recommendations. (March 2006). In the spring of 2005 a subcommittee of the Criminal Courts Task Force designed a comprehensive survey to distribute to an array of professionals engaged in the discovery processes of misdemeanor cases in the Criminal Court of the City of New York.  This report explains the results of the survey.
Bibas, Stephanos. The Story of Brady v. Maryland: From Adversarial Gameship Toward the Search for Innocence?. (2005). The University of Pennsylvania Law School This book chapter explains the story behind Brady v. Maryland and its broader significance in the field of criminal procedure. Brady is unusual among the great landmark criminal-procedure decisions of the Warren Court. Brady requires prosecutors to give criminal defendants evidence that tends to negate their guilt or reduce their punishment.
Joseph, Jannice E. The New Russian Roulette: Brady Revisited. (Fall 2004). Capitol Defense Journal This paper argues that prosecutorial suppression of exculpatory material in the criminal-justice system undermines the fair administration of justice and the reliability of the results produced by criminal trials.

Exclusionary Rule

Orin S. Kerr Good Faith, New Law, and the Scope of the Exclusionary Rule. (2011).

Lower courts recently have divided on whether the good faith exception to the Fourth Amendment exclusionary rule applies to reliance on overturned case law. This Article argues that the Supreme Court should reject the good faith exception in this setting.

Indictment

Indictment.

The United States Attorney`s Office, Western District of Virginia, provides an explanation of approval process of an indictment and the nature of an indictment.

United States v. Joffe. (2005).

This document is an actual indictment from the United States Attorney`s Office, Northern District District of Illinois, and an example of the form and language in a typical indictment.  This particular indictment alleges various violations of federal law, including a violation of the Convention on International Trade in Endangered Species of Flora and Fauna, also known as CITES.

Plea Bargaining

Avishalom Tor, Oren Gazal-Ayal, and Stephen M. Garcia. Fairness and the Willingness to Accept Plea Bargain Offers. (March 2010). Journal of Empirical Legal Studies, vol. 7.

In contrast with the common assumption in the plea bargaining literature, the authors show that fairness related concerns systematically impact defendants’ preferences and judgments.

Wright, Ronald F. Trial Distortion and the End of Innocence in Federal Criminal Justice. (2005). This article discusses the pressures experienced by federal defendants to plead guilty and the resulting reduction of jury trials.
Interview of Judge Michael McSpadden. (December 2003). In this interview, Judge Michael McSpadden talks about the plea bargain's vital role in the criminal-justice system and how the plea process works in his courtroom.

Pretrial Diversion

Pretrial Diversion and the Law: A Sampling of Four Decades of Appellate Court Rulings. (2006).

This study describes the legal issues that surround pretrial diversion by surveying appellate cases from across the country.

Criminal Justice/Mental Heath Consenus Project. (June 2002). Chapters 9 and 10 of this report address recommendations for helping people with mental illness to comply successfully with the terms and conditions of a pretrial diversion program.

Pretrial Release

Cohen, Thomas H., and Brian A. Reaves. Felony Defendants in Large Urban Counties, 2002. (February 2006). Washington, DC: Bureau of Justice Statistics Report includes statistics on frequency and type of pretrial release and bail amounts.
Phillips, Mary T. Release and Bail Decisions in New York City. (August 2004). CJA Research Brief, no. 6: 1 This report analyzes the factors that go into the decision of whether to set bond and the amount of bond in courts in New York City.
Compendium of State Laws on Bail and Bounty Hunters. (2001). Washington, DC: American Bail Coalition This Web site is a 50-state survey of the laws and licensing requirements applicable to bail bondsmen and bounty hunters.

Pretrial Services

Pretrial Justice Institute. This nonprofit organization's mission is "to improve the quality, fairness, and efficiency of the criminal justice system at the pretrial stage by promoting systematic strategies that improve court appearance rates, reduce recidivism, provide appropriate and effective services, and enhance community safety."  Their Web site contains a significant amount of information related to institutional mission.
Mahoney, Barry. Pretrial Services Programs: Responsibilities and Potential. (2001). Washington, DC: U.S. Dept. of Justice, Office of Justice Programs, National Institute of Justice The report discusses the dual function of pretrial services--to provide for pretrial supervision of defendants and to provide judicial officers information to make decisions about pretrial release.

Search Warrants

Fourth Amendment: Search and Seizure. This article is a detailed discussion of the application of the Fourth Amendment to the U.S. Constitution.
The Bill of Rights. (March 1789). The law of search and seizure is based on the Fourth Amendment, which is contained in the Constitution's Bill of Rights, enacted in 1789.
The Fourth Amendment: Search and Seizure Law. (October 2002). Minnesota House of Representatives This article provides an explanation of what Fourth Amendment protections are afforded to the people, what conduct violates these protections, what is required to obtain a search warrant, and what the exceptions are to the search-warrant requirement.