- Following broad bipartisan support in both chambers of Congress, President Trump signed the Due Process Protections Act into law on October 21, 2020.
- The legislation requires federal courts in the beginning of every criminal case to issue an order to the prosecution and defense that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny.
- By entering an order, district court judges have even greater supervisory involvement into requiring disclosure of Brady materials, including when such materials should be disclosed and what, if any, consequences the court might impose in the event of any violation of the court’s order.
On October 21, 2020, President Donald J. Trump signed the Due Process Protections Act, S. 1380, which provides additional protections for criminal defendants’ due process right to receive material exculpatory evidence from prosecutors before trial under Brady v. Maryland.1 Specifically, the law amends Federal Rule of Criminal Procedure 5 to require federal district courts to issue, “on the first scheduled court date . . . an oral and written order . . . that confirms the disclosure obligation of the prosecutor . . . and the possible consequences of violating such order under applicable law.”2 It also directs the judicial councils for each federal district to develop a model order that courts may use for this purpose.3
Though Brady has been the law of the land for more than fifty years, bill co-sponsors Senators Dan Sullivan (R-AK) and Dick Durbin (D-IL) expressed hope that this legislation “will make evidence disclosure requirements a priority for prosecutors, and ensure prosecutors can be held to account for not complying with Brady rules.”4
The legislation received strong bipartisan support, passing the Senate by unanimous consent in May and the House by voice vote in September.5 In the Senate, for example, the bill was also co-sponsored by Senators Cory Booker (D-NJ), John Cornyn (R-TX), Mike Lee (R-UT), Rand Paul (R-KY) and Sheldon Whitehouse (D-RI). According to Senator Durbin, the “bipartisan bill will help protect the right of the accused to all evidence that could exonerate [the defendant] and hold accountable prosecutors who fail to comply[.]” Similarly, according to Senator Sullivan, “[t]his is a good day for justice and the rule of law, and I thank President Trump for signing our bill.”
With the Due Process Protections Act’s requirement that federal judges issue early orders to ensure compliance, we expect that the federal courts will be even less understanding of Brady and other related due process violations. Although the Act does not purport to change the timing of Brady disclosures—a matter currently governed by local rules in each jurisdiction—we expect that it will encourage courts to set deadlines for such disclosures when courts issue their Brady orders “on the first scheduled court date.” Of course, once subject to court order, federal prosecutors will be more accountable to the court for any Brady disclosures made after the court’s deadline. We also expect that defense counsel will move more quickly and emphatically, if they believe a court’s order is not being fully and faithfully followed. And the requested relief could range from enforcement of the order up to the potential dismissal of charges and even sanctions. In comparison, current DOJ policy (as reflected in the Justice Manual) states that Brady disclosures should be “made in sufficient time to permit the defendant to make effective use of that information at trial.”6
Given the Act’s requirement that each district develop a model order that courts may use for their Brady orders, it is only a matter of time before the prosecution and defense bars will see how courts implement the Due Process Protections Act. As we await such model orders, this much appears certain: Moving forward, there will be increased litigation opportunities for defense counsel over purported Brady violations.