Due Process Protections Act Puts Prosecutors On Notice Regarding Disclosure Obligations under Brady v. Maryland

The Federal Docket

December 22, 2020

Earlier this year, Congress passed bipartisan legislation called The Due Process Protections Act. The law, now in effect, aims to remind federal prosecutors of their obligations under Brady v. Maryland and to strengthen the due process rights of individuals facing federal criminal charges.

Under Brady v. Maryland, federal prosecutors have an obligation to disclose, in a timely manner, any exculpatory information to the defense that is relevant to the defendant’s culpability or punishment. A failure to disclose material evidence that could have helped the defendant or changed the outcome of the proceedings is a violation of the defendant’s right to due process.

The Due Process Protections Act did several things, chief among them being an amendment to Rule 5 of the Federal Rules of Criminal Procedure that now requires judges in criminal cases to issue an order at the defendant’s initial appearance requiring that prosecutors confirm their obligation to disclose all potentially exculpatory evidence to the defense under Brady. The order must also remind the parties of the “possible consequences” of failing to comply with that obligation.

The law requires each judicial council in each federal judicial district to issue a “model” order for judges to use, subject to any changes they make in their discretion. Accordingly, each district is charged with setting up its own deadlines for the Government to disclose all exculpatory information to the defendant. Notably, each district is also free to determine the potential consequences of a failure to comply with the court’s “Brady order.” Some districts issue orders warning that a failure to comply with Brady can lead to “vacating a conviction or disciplinary action against the prosecution,” while others warn that consequences could include “exclusion of evidence, adverse jury instructions, dismissal of charges, contempt proceedings, or sanctions by the Court.”

The goal is for these “Brady orders” to make Brady disclosures a priority for federal prosecutors and avoid future cases of prosecutorial misconduct and overreach, such as the infamous bribery case of Senator Ted Stevens where the Government had wrongfully withheld exculpatory evidence from the defense. While a defendant is still at a disadvantage given that they don’t know what evidence the Government has or does not have, and therefore does not know what has been disclosed or withheld, the DPPA does given defendants several tools to protect their right to a fair trial.

Legal observers at the National Law Review note that the DPPA could have the following impact on federal criminal cases going forward:

  • Parties and courts will be incentivized to set early deadlines for disclosing Brady materials, rather than allowing prosecutors to disclose this information right before trial.
  • Defendants will have more opportunities to bring concerns to the court regarding the Government’s obligations given the existence of a Brady order with specific terms of compliance.
  • By setting specific deadlines for Brady disclosures at the very beginning of a case, the DPPA Act diminishes the Government’s ability to defend itself when it fails to meet a deadline or withholds evidence in violation of Brady.
  • There will likely be more transparency and better practices implemented among federal prosecutors relating to complying with districts’ Brady orders in a timely and effective manner.
  • Courts will be able to readily impose consequences for prosecutors’ failure to comply with their Brady orders based on the listed consequences in the order, giving the Government less opportunities to “cure” their violations under Brady.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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