The Due Process Protections Act of 2020

October 18 2021 | Committees

The Due Process Protections Act (“DPPA”) was passed on October 21, 2020 with bipartisan support in Congress. The DPPA codifies a prosecutor’s obligation to provide “Brady” material, i.e. evidence that is favorable to an accused, in a prudent manner. The DPPA amends Rule 5 of the Federal Rules of Criminal Procedure, “Initial Appearance,” by inserting the below as Section “f”:


            (f) Reminder of Prosecutorial Obligation.

(1) In general. 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.

(2) Formation of order. 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.



­­History & Overview


            The US Constitution includes two due process clauses – the 5th Amendment guarantees due process under the law from the Federal Government and the 14th Amendment makes the same guarantee apply to State Governments. The Due Process Protections Act seeks to ensure that due process under the law is protected and requires a judge, in the beginning of every case, to issue an “order to prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, [. . .] and its progeny.” The Brady Court began this due process reform in 1963, where Justice William Douglas’ majority opinion stated “we now hold that the suppression by the prosecution of evidence favorable to an accused upon request 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.” This United States Supreme Court decision has been interpreted to require prosecutors to, in a timely manner, disclose exculpatory evidence – incriminating or evidence that tends to prove guilt. This obligation has come to be known as the “Brady obligation.” After Brady, in 1972 Giglio v. United States expanded a prosecutor’s obligation to also timely provide evidence that could impeach a prosecution witness – including law enforcement. More than 40 years after Brady, Kyles v. Whitley, further expanded the Brady obligation and established that a prosecutor has an affirmative duty to disclose evidence favorable to a defendant.


            For criminal defendants, due process rights are generally hard to enforce because the defense does not know what information the government has access to and relies on the good faith of the prosecution team to timely provide Brady, Gigio, and Kyles material – should any of this material be withheld, many don’t find out until after a reputation has been tarnished, conviction has been made, and the damage is done. The DPPA seeks to help enforce Brady obligations – which the prosecutor is required to ensure have been met in every case.


Why is the DPPA significant?


            The DPPA gives each judicial district the responsibility to enforce and allows each district to draft its own “Standing Brady Order,” set its own deadlines, and determine its own consequences for a Brady violation. Congress’s goal with the DPPA is prioritize Brady disclosures for federal prosecutors and to avoid future cases of misconduct and overreach – like what occurred in the prosecution of Senator Ted Stevens for federal corruption as he ran for reelection to the Senate. The government withheld evidence that could have led to an acquittal, leading to a guilty verdict – the indictment was dismissed, vacating the conviction, when a Justice Department probe found evidence of gross prosecutorial misconduct.


            The DPPA does have limitations, for example – the Act does not require federal prosecutors to provide Brady material prior to plea negotiations, does not require the government to certify in a court filing that Brady obligations have been satisfied, additionally there is no requirement to have an “open file” discovery policy for federal prosecutors. The Act neither changes nor expands Brady, but it does send a message to federal prosecutors.


            The National Law Review expects the DPPA to have a number of impacts on federal cases, including:

  • Encouragement of courts and parties to set Brady disclosure deadlines early before trial – rather than on the eve of trial.
  • Highlighting defense counsels concerns regarding whether the government is fulfilling its Brady obligation, increasing the Court’s attention to the subject.
  • After a Court sets a deadline, the government will be held accountable - in that the Court will be less sympathetic to the prosecution should it fail to meet its obligations in a timely manner.
  • Federal prosecutors will be required to be more transparent and implement better practices relating to complying with Brady obligations in a timely manner.
  • Judges will be able to quickly impose sanctions against prosecutors for failing to comply with Brady orders based.


Varying implementation


            The standing Brady orders in the three federal judicial districts of Louisiana (Eastern, Middle, and Western) are similar and confirm the government’s obligations to provide evidence to the defense in accordance with Brady v. Maryland and its progeny. Each court then describes the potential consequences should those obligations not be met – with those consequences depending on the severity and scope of the Brady failure. Consequences generally include: exclusion of evidence, adverse jury instructions, dismissal of charges, contempt of court proceedings, and/or sanctions by the Court. The main difference among the Louisiana districts is the exclusion of the phrase “timely manner” in the Western District of Louisiana’s order in connection to when Brady material must be disclosed.


            While each Judicial District in the United States is required to enter an order confirming the prosecutor’s disclosure obligations under Brady and its progeny at the outset of each case, those obligations are not required to be defined by the standing order or set guidelines for what content should be included – other than potential consequences. What’s left is that each district has discretion to decide what information must be disclosed, when it must be disclosed, the scope of the prosecution team that is bound to make a disclosure, and how compliance, or non-compliance, will be determined and sanctioned.


            Some courts have gone to great lengths in setting forth the prosecutor’s obligations. For example, the United States District Court for the District of Columbia order defines each obligation under Brady and its progeny, directs the government on how to apply Brady with competing/contradictory legislation such as the Jencks Act, and advises that disclosures should be made before a plea is entered. The D.C. order provides further instruction to the government on how Discovery should be conducted – seemingly to avoid the concealment of Brady material in a “document dump” and likely to ensure that a defendant’s right to due process under the law is truly met.


            While these various protective measures have been implemented across the country, it remains to be seen what effect these orders will have and what the result would be should a prosecutor violate these Standing Brady Orders. While not mandated, each District Judge retains the authority to enter a more expansive Discovery Order in an individual case to supplement the District wide standing order – which defense counsel could actively contribute to and could provide procedures for alleging Brady violations as well as determine a mechanism for handing violations. Although entered before the DPPA was enacted, the Discovery order entered in United States v. Rainey (criminal action arising out of the Deepwater Horizon explosion in 2015) by Judge Kurt Englehardt (then of the U.S. District Court for the Eastern District of Louisiana, now of the United States Court of Appeal for the Fifth Circuit) has been described as an exemplar of how to protect criminal defendant’s Brady rights prospectively and proactively.



            It also remains to be seen what effect the DPPA will have on pre-indictment pleas in the federal system. While the DPPA ensures that a prosecutor is made aware of his Brady obligations during the initial appearance, many defendants enter into plea negotiations prior to formal charges being instituted. These defendants would still retain all due process rights under the law however the government would not have any discovery obligations.


Brian J. Capitelli
Capitelli & Wicker
Criminal Law Committee Co-Chair 


Tyffani A. Lauve
Capitelli & Wicker


Written on Behalf of the Criminal Law Committee


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