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

Greg Hurley. The Trouble with Eyewitness-Identification Testimony in Criminal Cases. (2017).

Research has found that eyewitness-identification testimony can be very unreliable. Law enforcement and the courts should follow the recommendations of social scientists when using and assessing eyewitness techniques, such as lineups, in criminal cases.

WEBINAR: Effective Felony Case Processing for Administrative Judges and Court Managers. Faculty from the NCSC in partnership with the Bureau of Justice Statistics present hands-on, proven ways to improve felony case management.  The webinar stems from research surrounding the practices and problems courts experience and will be helpful for administrative judges and court managers alike seeking to reduce needless delay and improve felony case processing.
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.


Gregory Hurley Trends: Close Up - Policy Implications of Body Worn Cameras. (2016).   Body Worn Cameras, or “BWCs,” are increasingly being deployed by law enforcement agencies.
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: <i>Brady</i> 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.

Susan A Bandes The Roberts Court and the Future of the Exclusionary Rule . (2009).

American Constitution Society for Law and Policy

 Argues that this controversial rule is essential in balancing individual privacy and police power. The idea behind the rule is that the government should not benefit from its own wrongdoing. Studies show that criminals accused of violent crime almost never go free because of excluded evidence.



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.

Chance Meyer Mitigation Paradigms: What Reduces Criminal Sentences, Explanation or Excuse?. (Fall 1).

Florida Bar Journal

Defines mitigation evidence and describes the "difference between explaining a person's wrongful behavior and explaining it away." He then assesses both of these viewpoints. 

Jessica Smith The Criminal Indictment: Fatal Defect, Fatal Variance, and Amendment. (2008).

UNC School of Government, Administrative Justice Bulletin

Gives a general explanation of indictments and describes example cases for specific types of criminal activities.

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.
Richard A. Oppel Jr. Sentencing Shift Gives New Leverage to Prosecutors .

The New York Times

 Prosecutors are being more coercive in order to make defendants consider not going to court at all, causing the percentage of felony cases that go to trial to drop in many places. The overloaded court system has incentivized keeping people out of court, eliminating the need for a trial by offering plea bargains. This article explains that it is not necessarily innocent vs. guilty anymore, it is however you wish to weigh your options.

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.

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.

Catherine Camilletti Pretrial Diversion Programs: Research Summary . (2010).

Bureau of Justice Assistance

 This brief overview defines these voluntary diversion programs. It explains how they can reduce crime by eliminating underlying factors such as mental illness or substance abuse which could eventually reduce recidivism. However, the author asserts that there neds to be more research conducted in order to assess whether or not these programs are actually effective.

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.
Thomas H. Cohen Pretrial Release and Misconduct in Federal Courts 2008-2010.

U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics

 This report includes statistics regarding pretrial releases, which is most common for defendants charged with property offenses. Some notable figures include: half of those with no prior record were released pre-trial, and of defendants released, nearly 80% were given restrictions including substance abuse requirements, weapons restrictions, and travel restrictions.

Phillips, Mary T. Bail, Detention, and Felony Case Outcomes. (September 2004). CJA Research Brief, no. 6: 1 This report analyzes the relationship between detention and case outcomes in felony courts.

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.
Pre-Trial Services Program Implementation Kit.

Pre-Trial Justice Institute

Explains the framework of a pre-trial services program and the factors that impact pre-trial release decisions. It describes how to implement a program in a jurisdiction that does not already have one and explains the legal reasoning behind why such programs exist.

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.