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

General

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

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. (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. (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).
  • 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. 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

Plea Bargaining

  • Avishalom Tor, Oren Gazal-Ayal, and Stephen M. Garcia. Fairness and the Willingness to Accept Plea Bargain Offers. (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 needs 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. (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. (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. (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. (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.