The Due Process Protections Act under Federal Law

The “Due Process Protections Act” (“DPPA”) became law in October 2020. It received rare bi-partisan support in both houses of Congress and was signed by Trump. The bipartisan support may be attributed to the fact that the law was inspired by the prosecution of U.S. Senator Ted Stevens. The charges against Sen. Stevens were dismissed, after a jury convicted the Alaskan Senator, when it was revealed that the U.S. Attorney withheld exculpatory materials (commonly referred to as “Brady” – more below). Commenting on the law, current Senator Sullivan of Alaska mentioned the “reckless” prosecution of Senator Stevens. Senator Sullivan stated that the purpose of the DPPA is to “ensure all Americans’ due process rights are protected, and to hold prosecutors accountable when they violate a defendant’s constitutional rights.”

The law requires federal courts at the initiation of every case to remind the government of its constitutional discovery obligations and the possible consequences for ignoring those obligations.

The Fifth and Fourteenth Amendments to the U.S. Constitution grant accused persons due process of law. The government is required to disclose exculpatory and impeachment evidence to ensure the accused’s constitutional guarantee to a fair trial. In Brady v. Maryland, the United States Supreme Court held that withholding exculpatory evidence 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.” 373 U.S. 83, 87 (1963). Under Brady, prosecutors have a duty to disclose exculpatory information when such information is “material” to guilt or punishment. See also United States v. Bagley, 473 U.S. 667, 682 (1985) (clarifying that evidence is material to a finding of guilt where “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different”).

Limitations of the DPPA is that it fails to:

  • Set a timetable to reveal materials. For instance, prosecutors may choose not reveal Brady materials prior to plea negotiations. However, they do this at their own risk as they are required to reveal it for sentencing issues which may result in an embarrassing motion to withdraw a plea.
  • Require the prosecution to certify that they have complied with the DPPA.

The DPPA urges prosecutors to never forget that central tenet of Brady: “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” Brady, 373 U.S. at 87.

In a recent case in which counsel represented a person in the Northern District of Georgia, the court advised the Government:

Pursuant to the Due Process Protections Act, see Fed. R. Crim. P. 5(f), the government is ordered to adhere to the disclosure obligations set forth in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, and to provide all materials and information that are arguably favorable to the defendant in compliance with its obligations under Brady; Giglio v. United States, 405 U.S. 150 (1972); and their progeny. Exculpatory material as defined in Brady and Kyles v. Whitley, 514 U.S. 419, 434 (1995), shall be provided sufficiently in advance of trial to allow a defendant to use it effectively, and exculpatory information is not limited to information that would constitute admissible evidence. The failure of the government to comply with its Brady obligations in a timely manner may result in serious consequences, including, but not limited to, the suppression or exclusion of evidence, the dismissal of some or all counts, adverse jury instructions, contempt proceedings, or other remedies that are just under the circumstances.


Don’t mess with United States Senators! There have been countless Brady violations, but it was such a violation involving a U.S. Senator that prompted the DPPA.