Sullivan, Durbin Applaud Passage of Due Process Protections Act

WASHINGTON, D.C. – U.S. Senators Dan Sullivan (R-Alaska) and Dick Durbin (D-IL) today applauded the Senate’s unanimous passage of S. 1380, the Due Process Protections Actlegislation they introduced earlier this Congress to reinforce the constitutional right of defendants to access favorable and potentially exculpatory evidence obtained by prosecutors.

“The vast majority of federal prosecutors abide by their constitutional duties and obligations,” said Senator Sullivan. “But some choose to win at all costs by taking short-cuts and violating defendants’ constitutional rights by withholding evidence favorable to their defense. This is exactly what happened to the late Senator Ted Stevens, whose guilty verdict was overturned after these grave injustices were revealed. We can’t undo the harm that this caused Alaska, or the harm done to our system of justice as a result of this kind of prosecutorial misconduct, but going forward, the Due Process Protections Act will help ensure our system of justice – the foundation of American democracy – is stronger and fairer for all. I thank Senator Durbin for all of the hard work he put into the passage of this bill, and all of my colleagues, from both sides of the aisle, for their support.”

“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, which passed the Senate this week, will help protect the right of the accused to any exculpatory evidence without placing undue burdens on prosecutors,” Senator Durbin said.  “I’m grateful to Senator Sullivan for his partnership in this effort, and urge the House to pass this bill without delay.”  

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 Protections Act would: 

  • Amend Rule 5 of the Federal Rules of Criminal Procedure to require 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, 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.

Having these “Brady orders” in place will 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.”

According to the National Registry of Exonerations, between 1989 and 2017, prosecutors concealed exculpatory evidence at trial in half of all murder exonerations.

S. 1380 was also co-sponsored by Senators Cory Booker (D-NJ), John Cornyn (R-TX), Mike Lee (R-UT), Rand Paul (R-KY) and Sheldon Whitehouse (D-RI).