Due Process Protection Act

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Due Process Protection Act Requires Prosecutors to ‘Show Their Cards’ to Federal Defendants

On October 21, 2020, President Trump signed the Durbin-Sullivan Due Process Protections Act into law. The Act was designed to enhance the constitutional rights of defendants charged in federal court to access so-called Brady material – evidence that is favorable and potentially exculpatory.

In 1963, the U.S. Supreme Court case Brady vs. Maryland, held that due process requires prosecutors to disclose to defendants and their attorneys all “favorable” evidence that is “material” to their case.

The Due Process Protection Act was introduced in 2019 by U.S. Senators Dick Durbin (D-IL) and Dan Sullivan (R-AK) in response to federal prosecutors who routinely ignore the constitutional requirement to disclose Brady material to defendants – often without consequence.

According to the National Registry of Exonerations, between 1989 and 2017, for all state and federal wrongful convictions that resulted in exonerations, prosecutors had concealed exculpatory evidence at trial at least 44% of the time.

One notable example of this misconduct was the 2008 federal corruption prosecution of the late Senator Ted Stevens (R-Alaska). After Senator Stevens’ conviction for felony failure to report gift, his indictment (and subsequent conviction) was vacated prior to sentencing by the federal District Court after it was revealed that prosecutors and FBI agents conspired to withhold and conceal favorable evidence from Stevens’ defense.

Specifically, the Due Process Protections Act amends Federal Rule of Criminal Procedure 5 requiring federal district courts to issue, “in 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.” The Act also requires judicial councils serving each federal district to develop a model order that courts may use for this purpose. 

The Act allows judges to have greater supervisory involvement in requiring disclosure including when Brady material must be disclosed and what, if any, consequences might be imposed for violating the court’s order.

Once subject to court order, federal prosecutors will be held to heightened level of accountability for any Brady disclosures made beyond the court-imposed deadline.

Constitutional due process challenges for Brady violations often occur post-trial. With the Due Process Protection Act, defense attorneys can now move for expedited pre-trial relief if they believe a court’s order is not being fully and faithfully followed. Accordingly, relief could range from enforcement of the order up to the potential dismissal of charges or even sanctions against the prosecutor, where warranted.

If you find yourself facing criminal charges you need an attorney who will make sure your rights are protected and can thoroughly investigate and defend against all evidence the government plans to use against you against you at trial.  At Halberg Criminal Defense, our team approach puts the firm’s collective knowledge and experience in your corner. Our attorneys are available 24-7 — Call us at 612-DEFENSE (612-333-3673).