On Oct. 21, 2020, President Donald Trump signed the Due Process Protections Act into law. The DPPA, which amends Federal Rule of Criminal Procedure 5, is designed to provide greater procedural protection to defendants by facilitating their access to exculpatory evidence and to empower federal courts to sanction prosecutors who fail to comply with their disclosure obligations. The DPPA’s sponsors expressed the hope that it will “help ensure that federal prosecutors respect the constitutional right of defendants to access favorable and potentially exculpatory evidence.” While the long-term effect of the DPPA is an open question, in one SDNY case we have already seen its import in securing potentially exculpatory evidence early in criminal proceedings, leading to the pre-indictment dismissal of criminal charges against one of our clients.

‘Brady’ and the Disclosure of Exculpatory Evidence

In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court for the first time imposed an obligation on the government to disclose exculpatory or mitigating evidence to the defendant. In Brady, the court held 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.” Brady thus established dual requirements to trigger a prosecutor’s obligation to disclose: (1) the evidence must be favorable to the defendant; and (2) the evidence must be material to guilt or punishment. Exculpatory or mitigating evidence subject to disclosure is often referred to as Brady material.