Saturday, February 20, 2021

NACDL Model Rule Under Due Process Protection Act

The Due Process Protection Act (see here and here), provides that:

In all criminal proceedings, on the first scheduled court date when both prosecutor and defense counsel are present, the judge shall issue an oral and written 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, and the possible consequences of violating such order under applicable law.

But it also requires that:

Each judicial council in which a district court is located shall promulgate a model order for the purpose of paragraph (1) that the court may use as it determines is appropriate.

So what should that Model Order look like?  The National Association of Criminal Defense Lawyers (NACDL) has such an order for court's to use. It is an order that promotes due process, fairness to the accused, while also balancing the rights of others. A copy of that Order can be found here.  Importantly, it includes provisions of the consequences when there is a failure to comply.

(esp)(disclosure that I was part of the drafting team).

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