EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, May 10, 2019

Senators Dan Sullivan and Dick Durbin Introduce the Due Process Protection Act

On Wednesday, Senators Dan Sullivan and Dick Durbin introduced the Due Process Protection Act: S.1380 - A bill to amend the Federal Rules of Criminal Procedure to remind prosecutors of their obligations under Supreme Court case law. The language of the bill isn't available yet,  but a press release contains this statement by Senator Sullivan:

Our Constitution and Supreme Court have long established fundamental, commonsense protections for citizens facing prosecution – including the evidence disclosure obligation outlined in the case, Brady v Maryland....Unfortunately, this obligation is sometimes ignored to the detriment of our entire criminal justice system and inherent notions of fair play. Alaskans are keenly aware of this kind of miscarriage of justice, which was rampant in the high-profile prosecution of the late Senator Ted Stevens, a case that was dismissed following egregious due process violations. Our legislation is flexible and narrowly tailored to ensure that prosecutors abide by their constitutional obligations, and can be held accountable if they do not.

Specifically, the press release notes that the Due Process Protection act will

  • Amend Rule 5 of the Federal Rules of Criminal Procedure to require a judge in every case to issue an “order to prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny.”
  • Require each judicial council in which a district court is located to promulgate a model order that its courts can use at their discretion.
  • Leave it to the courts in each district to tailor the parameters of their Brady order, rather than impose any burdensome requirements on prosecutors.

This all sounds pretty promising, and, as the press release notes,

Judges are already able to issue “Brady orders” at the beginning of cases, which make evidence disclosure requirements a priority for prosecutors, and ensure prosecutors can be held to account for not complying with Brady rules. Many federal districts have already issued specific local rules or standing orders that govern Brady procedures. Instances where prosecutors fail in their constitutional obligation to share pertinent evidence with the defense are known as “Brady violations.”

I'll wait to read the bill before rendering a final verdict, but this certainly appears to be a bill that would strengthen the Constitutional mandate of Brady v. Maryland and make it likelier that prosecutors can be punished for failing to disclose material exculpatory evidence to defendants.



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Didn’t the Stevens prosecutors all go on to have glowing careers, all unscathed? I’ll bet that defense attorneys make many requests for exculpatory material in cases in which Brady violations have been committed. The new rule needs a real consequence for prosecutors.

Posted by: Brenda Pawloski | May 11, 2019 4:57:53 AM

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