On October 21, 2020, President Trump signed into law the “Due Process Protections Act” (“DPPA”), P.L. No. 116-182, 134 Stat. Ann. 894, which was effective upon enactment. Receiving rare bi-partisan support in both houses of Congress, the new law seeks to bring balance to the power dynamic between the prosecution and the defense by requiring federal courts at the outset of a case to put the government on notice of its constitutional discovery obligations and the potential consequences for flouting those obligations.

By directly amending Federal Rule of Criminal Procedure 5, rather than waiting for the usual process of the Judicial Conference of the United States recommending a proposed amendment to Congress, this new law suggests a sense of urgency among elected officials to curtail prosecutorial misconduct and overreach by federal prosecutors. In a statement issued after the bill was signed into law, Senator Sullivan, of Alaska, cited the infamous 2008 case against the late U.S. Senator Ted Stevens (who was then the longest-serving Republican U.S. Senator in history). In that case, the U.S. Department of Justice took the virtually unprecedented step of voluntarily moving to dismiss the indictment against Senator Stevens—after he was found guilty by a federal jury—when it was discovered that federal prosecutors improperly withheld exculpatory Brady evidence. Noting the “reckless” prosecution of Senator Stevens, Senator Sullivan stated that the purpose of the DPPA is to “ensure all Americans’ due process rights are protected, and to hold prosecutors accountable when they violate a defendant’s constitutional rights.”

Under the Fifth and Fourteenth Amendments to the U.S. Constitution, criminal defendants are guaranteed the right to due process of law. The government is required to disclose exculpatory and impeachment evidence to ensure the accused’s constitutional guarantee to a fair trial. In Brady v. Maryland, the United States Supreme Court held that withholding exculpatory evidence violates due process “where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). Thus, under Brady, prosecutors have an affirmative duty to timely disclose exculpatory information when such information is “material” to guilt or punishment. See also United States v. Bagley, 473 U.S. 667, 682 (1985) (clarifying that evidence is material to a finding of guilt where “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different”).

A potential impediment to the enforcement of a criminal defendant’s constitutional due process rights is that the accused does not know what information is in the government’s possession; he or she is completely reliant on the government’s good faith in disclosing any information that might be helpful to the defense. As a consequence, it is entirely up to the government to police itself to ensure that its constitutional discovery obligations are met in every case.

The DPPA signals Congress’s view that courts have a role to play in ensuring the rights of defendants. It sets forth requirements for courts that are aimed at ensuring that federal prosecutors abide by their constitutional obligations to provide defendants access to favorable and potentially exculpatory evidence.

The DPPA amends Federal Rule of Criminal Procedure 5, which governs “Initial Appearance,” by adding a new subsection (f). Subsection (f)(1) of amended Rule 5 states that “[i]n 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.”

Rather than mandate that each federal court recite a uniform script for advising the parties of the government’s disclosure obligation under Brady, subsection (f)(2) of amended Rule 5 gives flexibility to “[e]ach judicial council in which a district court is located” to “promulgate a model order for the purpose of paragraph (1) that the court may use as it determines is appropriate.” In keeping with this flexible approach, the DPPA also does not require each court to set a specific deadline by which the government must disclose Brady material to the defense.

Some may say that the DPPA’s flexibility and limited scope cause it to fall short of Congress’s stated goal. For example, the DPPA does not require that federal prosecutors to provide Brady material in the context of plea negotiations. It does not require the government to certify in a court filing that they satisfied their Brady obligations. Nor does it require the government to follow an “open file” discovery policy that some prosecutors’ offices have adopted to ensure that Brady obligations are met.

Federal courts across the country have started to issue orders under amended Rule 5(f). Notably, the Rule 5(f) orders differ in certain Districts in terms of the potential “consequences” set forth for failures to comply with Brady. For example, the U.S. District Court for the Eastern District of Virginia’s Rule 5(f) order states that failure to comply with Brady “may result in serious consequences, up to and including vacating a conviction or disciplinary action against the prosecution.” In contrast, the Rule 5(f) order issued by the U.S. District Court for the Western District of New York enumerates additional potential consequences for Brady violations, stating that the failure to comply with Brady “may result in consequences, including, but not limited to, exclusion of evidence, adverse jury instructions, dismissal of charges, contempt proceedings, or sanctions by the Court.”

In general, we can expect these new Rule 5(f) orders to have the following overall impact on federal criminal cases nationwide:

• They will encourage courts and parties to set early Brady disclosure deadlines well in advance of trial.

• They will embolden defense counsel to bring concerns to the courts’ attention about whether the government has fully satisfied its disclosure obligations.

• After courts set Brady disclosure deadlines, the government will be held accountable to such deadlines in that courts will be less sympathetic to the government’s position when the government fails to meet these deadlines or engages in conduct that amounts to a Brady

• Federal prosecutors are likely to become more facile in how they gather, manage, and handle discovery materials and further hone “best practices” for meeting their Brady disclosure obligations in a timely manner.

• For egregious Brady violations, courts will readily impose the “consequences” for Brady violations, as articulated in the courts’ orders that are issued pursuant to the DPPA and Federal Rule of Criminal Procedure 5(f), rather than give the government an opportunity to cure the violations.

While the DPPA might be interpreted by some as signaling a loss of confidence in federal prosecutors, it should not be. Nor should it be perceived by those in government as an impediment to justice. Viewed in its proper context, the DPPA is merely a simple reminder of a truism stated in the Brady decision—and that should be taken to heart by everyone involved in the criminal justice process, especially federal prosecutors—that “[s]ociety wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” Brady, 373 U.S. at 87.