WASHINGTON, D.C. – U.S. Senators Dan Sullivan (R-AK) and Dick Durbin (D-IL) today introduced the Due Process Protection Act, legislation to reinforce the constitutional right of defendants to access favorable and relevant evidence obtained by prosecutors.
“Our Constitution and Supreme Court have long established fundamental, commonsense protections for citizens facing prosecution – including the evidence disclosure obligation outlined in the case, Brady v Maryland,” said Senator Sullivan. “Unfortunately, this obligation is sometimes ignored to the detriment of our entire criminal justice system and inherent notions of fair play. Alaskans are keenly aware of this kind of miscarriage of justice, which was rampant in the high-profile prosecution of the late Senator Ted Stevens, a conviction that was overturned following egregious due process violations. Our legislation is flexible and narrowly tailored to ensure that prosecutors abide by their constitutional obligations, and can be held accountable if they do not.”
“The Due Process Clause is enshrined in our Constitution as a check against government overreach, but currently there are inadequate safeguards in federal law to ensure that this fundamental constitutional right is protected. Our modest, bipartisan bill would help protect the right of the accused to any exculpatory evidence without placing undue burdens on prosecutors,” Senator Durbin said.
“Due process is the cornerstone of fairness in the American justice system—a system that grants the accused certain unwavering rights and protections during legal proceedings,” said Jessica Jackson, co-founder and national director of #cut50, a national bipartisan initiative dedicated to reforming the criminal justice system. “But in many ways, individuals facing prosecution have the deck stacked against them. When key evidence is withheld, or revealed years, sometimes decades after a conviction, it’s a symptom of our system falling short. That needs to change. At #cut50, we work to enact smart, bipartisan measures—like the Due Process Protection Act—that protect people and communities at the same time. We applaud Senators Sullivan and Durbin for reaching across the aisle and coming together to introduce this proposal, which we urge the Senate to take up and swiftly pass.”
Under the Fifth and Fourteenth Amendments to the U.S. Constitution, defendants are guaranteed due process under the law. The 1963 Brady vs. Maryland U.S. Supreme Court case clarified that due process entails the requirement of prosecutors to disclose to the accused all “favorable” evidence that is “material” to their case.
The Due Process Protection Act will:
• Amend Rule 5 of the Federal Rules of Criminal Procedure to require a judge in every case to issue an “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.”
• Require each judicial council in which a district court is located to promulgate a model order that its courts can use at their discretion.
• Leave it to the courts in each district to tailor the parameters of their Brady order, rather than impose any burdensome requirements on prosecutors.
Judges are already able to issue “Brady orders” at the beginning of cases, which make evidence disclosure requirements a priority for prosecutors, and ensure prosecutors can be held to account for not complying with Brady rules. Many federal districts have already issued specific local rules or standing orders that govern Brady procedures. Instances where prosecutors fail in their constitutional obligation to share pertinent evidence with the defense are known as “Brady violations.”
U.S. District Court Judge Emmet Sullivan presided over the 2008 trial of Alaska’s late Senator Ted Stevens. Judge Sullivan recounted the prosecutorial misconduct and Brady violations that took place in that case, and advocated for new measures to hold prosecutors to their constitutional obligations in a November 2017 op-ed that appeared in the Wall Street Journal.
According to the National Registry of Exonerations, between 1989 and 2017, prosecutors concealed exculpatory evidence at trial in half of all murder exonerations.