A new law will require all federal judges to enter an order at the beginning of every criminal case advising prosecutors of their duties under Brady v. Maryland, 373 U.S. 83 (1963) to disclose exculpatory evidence to the defense. Intentional violations of the orders could subject prosecutors to stern sanctions – up to and including vacating a conviction or disciplinary action against the prosecutor – or even contempt.

The Due Process Protection Act was signed into law in October after unanimous votes by the United States Senate and House of Representatives. Advocates hope the Act will help stem prosecutorial misconduct, prevent violations of defendants’ due process rights, and avoid costly reversals and retrials.

The Act amends Rule 5 of the Federal Rules of Criminal Procedure to require federal judges to issue an oral and written order at the outset of every criminal case “that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and the possible consequences for violating such order[.]”

In the landmark Brady decision the United States Supreme Court held that due process required prosecutors to disclose to a criminal defendant all favorable material evidence “that would tend to exculpate” the defendant. Though the principles of Brady are deeply embedded into criminal jurisprudence – indeed, the opinion has been cited in over forty thousand subsequent state and federal cases over the last fifty years – this legislation is intended to “make evidence disclosure requirements a priority for prosecutors, and ensure prosecutors can be held to account for not complying with Brady rules.” Sullivan-Durbin Due Process Protections Act Signed Into Law, (Oct. 22, 2020).

So-called “Brady violations” have caused courts to overturn convictions in countless cases, but the Act was passed in response to one of the most notable Brady violations. In 2009, Judge Emmet Sullivan of the United States District Court for the District of Columbia vacated the conviction of United States Senator Ted Stevens of Alaska after prosecutors failed to disclose exculpatory evidence.

In the subsequent years, Judge Sullivan has publicly pressed for courts to enter orders defining prosecutors’ disclosure obligations. In a Wall Street Journal op-ed Judge Sullivan touted the benefits of entering an exculpatory evidence order at the outset of every criminal case. See How New York Courts are Keeping Prosecutors in Line, Wall Street Journal (Nov. 17, 2017). According to Judge Sullivan, these orders will ensure that “busy prosecutors will make finding and turning over [exculpatory] material a priority” and also ensure “prosecutors who commit intentional misconduct can be held accountable. . . . If a Brady order is in place . . . the prosecutor can be held in contempt of court or subjected to other judicial sanctions.”

How effective these orders will be in warding off Brady violations will depend, in large part, on the level of specificity included by the presiding judge. Courts could include specific deadlines, tailored to the complexity of the case and keyed off other pretrial dates, by which disclosures are to be made. Deadlines set by court order would create additional accountability for prosecutors for belated, or non-existent, Brady disclosures, and provide additional litigation opportunities for defense counsel over purported violations. Alternatively, courts could simply view this requirement as an opportunity to formally remind prosecutors of their preexisting obligations, without creating any additional mechanism to hold them accountable for violations.

While prosecutors still must exercise their own judgment and discretion in determining what information to disclose to a criminal defendant under the law and Department of Justice policy,[1] the new orders have the potential to further strengthen long-recognized due process rights under Brady.