Due Process Protections Act Sends a Message to the Government

On October. 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.