On Oct. 21, 2020, President Trump signed into law the Due Process Protections Act (DPPA) requiring federal judges to issue an order at the outset of all criminal proceedings that “confirms” the government’s Brady disclosure obligations and the “possible consequences” of Brady violations. The next week, judges in the Southern District of New York (SDNY) began issuing written orders directing the government to make the Brady disclosures and warning of the potential consequences for failing to comply with the orders. The DPPA’s new requirements are especially timely in light of recent high-profile Brady-related controversies arising in the SDNY and elsewhere. While the DPPA does not alter the government’s substantive Brady obligations, it sends a meaningful message to federal prosecutors, lays the foundation for potential contempt-of-court and sanctions recourse for Brady violations, and could therefore prove a useful tool for federal criminal practitioners.

The ‘Brady’ Obligation To Disclose Exculpatory Evidence

In the landmark case of Brady v. Maryland, 373 U.S. 83 (1963), the U.S. Supreme Court recognized that, to protect individuals’ Constitutional rights to due process and a fair trial, prosecutors must disclose to the defense all known information “favorable to an accused” that is “material either to guilt or punishment.” Brady and its progeny establish that prosecutors have an affirmative duty to seek out and disclose to the defense all material evidence that is favorable to the accused and is known to the government. The Brady obligation also requires prosecutors to disclose what is known as Giglio materials—information that can be used to impeach the trial testimony of a government witness—sufficiently in advance of trial to permit its effective use by the defense at trial. Giglio v. United States, 405 U.S. 150 (1972). These are continuing obligations that apply to materials that become known to the government, even after trial, and even if the government does not credit them. The suppression of favorable information violates a defendant’s right to due process irrespective of prosecutors’ good or bad faith and may justify setting aside a conviction.