Overview
The Due Process Protections Act amended the federal rules of criminal procedure to require district courts to issue, at the outset of every criminal case, an order confirming the prosecutor's disclosure obligations under Brady v. Maryland, and the consequences for violating the order. A critical role for defense counsel at the outset of a criminal case will now be to shape the terms of this mandatory Brady order. Key open issues that should be the subject of defense counsel advocacy as courts begin to implement this important new law include: what information must be disclosed, when it must be disclosed, the scope of the prosecution team that is bound to make disclosure, and how compliance or noncompliance will be determined and sanctioned. This article gives a roadmap for defense counsel to obtain a broad and meaningful Brady order on each of these issues.
The Due Process Protections Act Requires Mandatory Brady Orders in Every Criminal Case
On October 21, 2020, President Trump signed the Due Process Protections Act (the Act), which amended Federal Rule of Criminal Procedure 5 to require district courts to issue, at the first court appearance in every criminal case, an order confirming the prosecutor’s disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and the possible consequences of violating such order.[1] The Act also requires each circuit judicial council to promulgate a model Brady order for district courts to consider.[2] The Act was passed with broad bipartisan consensus, by unanimous consent in the Senate and by a voice vote in the House of Representatives.
The Act’s sparse legislative history reveals that Congress decided to require mandatory Brady orders in every case because there were previously "inadequate safeguards in Federal law" to ensure that prosecutors complied with their constitutionally-mandated disclosure obligations.[3] House Sponsor Representative Sheila Lee Jackson explained the consequences of these inadequate safeguards by pointing to the case of Alaska Senator Ted Stevens. After Senator Stevens' conviction, Judge Emmet Sullivan dismissed the case at the Department of Justice's request due to post-trial revelations that the government had failed to turn over exculpatory evidence. After the dismissal, Judge Sullivan appointed a special prosecutor to determine whether criminal contempt or other sanctions were warranted against the prosecution team. Ultimately, Judge Sullivan accepted the special prosecutor's recommendation that such sanctions were not viable because the court had not issued an enforceable order requiring the prosecutors to abide by their Brady obligations.[4] The Due Process Protections Act will make such Brady orders mandatory and enforceable in every case to avoid a similar outcome.
Defense Counsel Should Advocate for Broad and Meaningful Brady Orders Under the New Federal Rule of Criminal Procedure 5(f)
A key role for defense counsel at the outset of future criminal cases will be to advocate for a broad and meaningful Brady order under the new Federal Rule of Criminal Procedure 5(f). Although the new Rule 5(f)(1) requires an order confirming the prosecution's disclosure obligations under Brady and its progeny, it does not define those obligations, or set any other parameters for the content of the order, beyond requiring an explanation of the possible consequences of noncompliance. Instead, the rule leaves open questions about what information must be disclosed, when it must be disclosed, the scope of the prosecution team that is bound to make disclosure, and how compliance or noncompliance will be determined and sanctioned. Moreover, while the Act calls upon each judicial council (the term for the governing body of each federal circuit’s judiciary that, for example, frequently promulgates model jury instructions) to promulgate a model order, it does not require district courts to use any model order.[5] Thus, even after the judicial councils have promulgated model orders, there will be room and need for continued advocacy by defense counsel in every case.
Here are some of the key open questions that should be the subject of defense counsel advocacy.
What information must be disclosed?
What must be disclosed turns on the definition of "the disclosure obligation of the prosecutor under Brady ... and its progeny" as used in the new Fed. R. Crim. P. 5(f)(2). The definition of that disclosure obligation has been subject to extensive litigation for decades. Prosecutors often urge the post-trial standard—that the failure to disclose exculpatory evidence only requires vacating the verdict if that evidence was material, i.e., if there is any reasonable likelihood that it could have affected the judgment of the jury.[6] That materiality determination can only be made retrospectively, in light of the trial record: "strictly speaking, there is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict."[7]
But the Due Process Protections Act now requires courts to enter Brady orders before trial, at the outset of the case. The Brady disclosure obligation is rooted not only in the Due Process Clause, but in "the special role played by the American prosecutor in the search for truth in criminal trials."[8] "[T]he United States Attorney is 'the representative not of an ordinary party to a controversy, but of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.'"[9] "Thus the term 'Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence—that is, to any suppression of so-called 'Brady material.'"[10]
In the pre-trial setting, it makes little sense to apply the "strict[]" formulation of a "real 'Brady violation'" assessed through a post-trial lens.[11] The factors on which retrospective Brady materiality depends—the availability, identity, and testimony of witnesses, the documentary and physical evidence, the court's evidentiary and legal rulings and jury instructions, and the jury's deliberations and verdict—"are unknown and unknowable before trial begins."[12] Allowing the prosecution "to look at the case pre-trial through the end of the telescope an appellate court would use post-trial" would "permit[] prosecutors to withhold admittedly favorable evidence whenever the prosecutors, in their wisdom, conclude that it would not make a difference to the outcome of a trial."[13] Not only is that assessment by non-neutral prosecutors often faulty,[14] but it has the potential to elevate gamesmanship over the defendant's right to a fair trial.[15]
A better approach is simply to require disclosure of evidence "favorable to the accused"—i.e., evidence "that relates to guilt or punishment and that tends to help the defense by either bolstering the defense case or impeaching potential prosecution witnesses."[16] Where evidence clearly has substantial value to the defense, elementary fairness requires it to be disclosed, without consideration of its likely effect at trial.[17] Where doubt exists as to its usefulness to the defense, prudent prosecutors will resolve such doubt in favor of disclosure.[18] If they do not, under the Act they will be on notice of enforceable consequences.
An enforceable Brady order at a case's outset also creates an opportunity to clarify the prosecutors' obligation to disclose exculpatory or impeaching information from witnesses. The government regularly argues, and courts sometimes rule, that statements by witnesses are governed exclusively by the Jencks Act.[19] But because the Constitution trumps statutes, Brady and Giglio trump the Jencks Act.[20] If a witness gives the prosecution exculpatory information (for example, that someone other than the defendant committed the crime), that information is subject to Brady,[21] irrespective of whether it is contained in a written or recorded statement or the government intends to call the witness at trial.[22] And because there is no constitutional difference between impeachment evidence and exculpatory evidence,[23] the same rule applies for information that impeaches any witness essential to the prosecution's case.
The Brady order under Rule 5(f)(1) should therefore make clear that both witness statements and impeachment evidence are covered. Defense counsel should also advocate for that order to define the disclosure obligation using the "favorable to the defense" standard, not the "materiality" standard typically favored by prosecutors.
When must information be disclosed?
Because Brady concerns trial fairness, not discovery,[24] and has commonly been assessed retrospectively,[25] some courts have been reluctant to set hard deadlines for the production of Brady material.[26] Instead, they have required only "that Brady material must be disclosed in time for its effective use at trial ... or in a plea proceeding."[27] Some—but by no means all—prosecutors try to take advantage of this amorphous standard to delay disclosures until the eve of trial—a practice that can lead to a disruptive continuance,[28] reversal and new trial,[29] or even a mistrial with prejudice.[30]
District courts have broad discretion, however, to enter case-management orders requiring disclosure of exculpatory or impeachment information before trial.[31] Many courts require prosecutors to make disclosure a set number of months or weeks before trial.[32] The new Rule 5(f)(1) now appears to require, or at least strongly suggest, such an order in every case. At a minimum, the Act affirms that every trial court has the authority to enter an enforceable order requiring timely disclosure of exculpatory and impeaching information under Brady and progeny.
Defense counsel should advocate for a requirement that Brady information be disclosed at arraignment or by the deadline for the government to provide Rule 16 discovery, with a requirement that the government supplement the initial Brady production with any additional exculpatory evidence "promptly after its existence becomes known to the Government."[33] Requiring an early, specific deadline will ensure that prosecutors do not sit on exculpatory evidence until close to trial after the opportunities for pretrial use of evidence have been lost.
Whose information must be disclosed as part of the prosecution team?
"The government cannot with its right hand say it has nothing while its left hand holds what is of value."[34] Brady obligations extend not just to the trial prosecutors, but to any person or entity acting on the government's behalf in connection with the matter.[35] Where prosecutors conduct a joint investigation with another agency, "the prosecutor's duty extends to reviewing the materials in the possession of that other agency for Brady evidence."[36] The determination of whether another agency is acting on the government's behalf in the case is a "fact-specific inquiry that is best approached on a case-by-case basis."[37] As the DOJ's "Guidance for Prosecutors Regarding Criminal Discovery" instructs, prosecutors should "err on the side of inclusiveness when identifying the members of the prosecution team for discovery purposes."[38]
In addition, where the prosecution's case depends on the credibility of a central witness or testimony about the operation of a particular agency, the prosecution must disclose information in the agency's possession that undercuts the government's case or the witness's credibility, even if the agency is not itself part of the prosecution team.[39]
Defense counsel should advocate for the prosecution team to be defined as broadly as possible to cover all known participants in the investigation, based on a case-specific analysis. Defense counsel should analyze publicity about the case including any press releases from the prosecuting agency for evidence of participation by different agencies or other third parties.
How should compliance or lack thereof be determined and sanctioned?
Prosecutors often use form letters to respond to discovery requests. Those form letters include a perfunctory note that the prosecutors are aware of, and either have complied or will comply with, their Brady obligations. If the defense moves to compel Brady disclosures, they will likely be met with a government opposition repeating that the government has met its obligations. The Due Process Protections Act raises the possibility, however, that the Rule 5(f) order could require prosecutors to certify their compliance with Brady to the court as a matter of course. Such a requirement would put pressure on prosecutors to take their constitutional obligations seriously and avoid making misrepresentations to the defense and the court.
The Brady order could also specify the potential remedies if the court concludes that the government has violated the order. Those remedies could include a continuance of the trial,[40] exclusion of evidence,[41] granting a mid-trial supplemental opening statement by defense counsel to address the newly disclosed evidence,[42] issuing a curative instruction,[43] ordering a new trial,[44] and dismissing the case with or without prejudice.[45] The order could also specify the potential individual consequences to the prosecutors for noncompliance, including sanctions, disqualification from the case, institution of criminal contempt proceedings, and referral to the Department of Justice's Office of Professional Responsibility or state bar associations.[46]
Resources for Advocacy
The Due Process Protections Act has not been in place for long, and only the Eighth Circuit Judicial Council has so far issued a public model order as required by Fed. R. Crim. P. 5(f)(2). That order, and a handful of district court orders, have merely confirmed the existence of the Brady obligation, and stated that failure to disclose in a timely manner may result in consequences including "exclusion of evidence, adverse jury instructions, dismissal of charges, contempt proceedings, disciplinary action, or sanctions by the Court."[47] One judge in the Southern District of New York has issued a lengthier order worthy of review in several cases.[48] It remains to be seen whether judges will enter orders that effectively protect the rights of criminal defendants by specifying both the timing and content of disclosure obligations.
Defense counsel can find an example of a comprehensive and meaningful Brady order in United States v. Rainey, a case arising out of the Deepwater Horizon explosion that Steptoe tried in 2015. In Rainey, Judge Kurt Engelhardt (then of the US District Court for the Eastern District of Louisiana, now of the Fifth Circuit) issued a nine-page "discovery order" governing the prosecution’s disclosure of exculpatory information to the defense.[49] The Rainey order had many favorable provisions:
- It required disclosure of any information or evidence that "may appear to be favorable to the defendant" with respect to the determination of guilt, any preliminary matter, or the potential sentence, and expressly forbade the prosecutors from applying a materiality standard when identifying information subject to disclosure.[50]
- It required the government to produce all covered information within 30 days of the entry of the order.[51]
- It defined the prosecution team broadly to include specific agencies known to be working with the prosecutors and all other entities or individuals acting on behalf of, jointly with, or under the control of the prosecution, and required the prosecutors to err on the side of inclusiveness when identifying members of the prosecution team for purposes of the order.[52]
- It required the government's counsel of record to file "a sworn certification of compliance with all provisions of this Order, affirmatively stating the Government's completion of compliance with this Order, signed personally by all counsel of record for the Government."[53]
- It provided that if there was reason to believe that government counsel had failed to comply with the order, the court would issue an order to show cause and potentially order remedies including costs, exclusion of evidence, dismissing proceedings, sanctioning individual counsel, or any other remedy deemed appropriate by the court.[54]
For now, the Rainey order stands out as an exemplar of how to protect a criminal defendant's Brady rights prospectively and proactively.
The Due Process Protections Act is a big step in the right direction towards ensuring that criminal defendants obtain the exculpatory information to which they are entitled. It is now up to defense counsel to advocate vigorously to make the Brady orders required by Rule 5(f) as expansive and impactful as possible.
[1] Due Process Protections Act, Pub. Law 116-182, 134 Stat. 894 (Oct. 21, 2020), available here.
[2] Id. (Fed. R. Crim. P. 5(f)(2)).
[3] 166 Cong. Rec. H4582-83 (Sept. 21, 2020) (noting that a majority of Federal districts lacked a local rule or standing order confirming the government’s obligation to disclose Brady and Giglio material).
[4] Id.
[5] Fed. R. Crim. P. 5(f)(2) (a district court "may use" a model order "as it determines is appropriate").
[6] See Strickler v. Greene, 527 U.S. 263, 281-82 (1999) (noting "three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.").
[7] Id. The Brady materiality determination must be made in light of the trial record, "considered collectively, not item by item." Kyles v. Whitley, 514 U.S. 419, 436-37 (1995).
[8] Strickler, 527 U.S. at 281.
[9] Id. (quoting Berger v. United States, 295 U.S. 78, 88 (1935)); accord Brady, 373 US at 87 ("'The United States wins its point whenever justice is done its citizens in the courts.'"). Consistent with this interest, the Department of Justice "encourage[s] [prosecutors] to provide discovery broader and more comprehensive than the discovery obligations" required by the Federal Rules of Criminal Procedure, the Jencks Act, and Brady and progeny. Memorandum for Department Prosecutors Re Guidance for Prosecutors Regarding Criminal Discovery (Jan. 4, 2010, updated Mar. 3, 2017) (the Ogden Memo), available here (last visited Dec. 10, 2020); see also Cone v. Bell, 556 US 449, 470 n.15 (2009) ("[T]he obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor's ethical or statutory obligations." (citing ABA Model Rule of Professional Conduct 3.8(d) (2008))); see also 28 U.S.C. § 530B (binding federal prosecutors to state ethics rules).
The Ogden Memo was issued as part of a working group convened to undertake a thorough review of the Department Justice's policies, practices, and training related to criminal case management and discovery. The working group included senior prosecutors from US Attorneys' Offices, senior prosecutors from the Department of Justice (Main Justice), law enforcement representatives, and Information Technology support personnel. Id. The Ogden Memo has not been superseded and remains in the DOJ's Criminal Resource Manual despite its age. A 2017 memorandum from Deputy Attorney General Sally Yates implies that it is still followed by the DOJ. See Memorandum re Supplemental Guidance for Prosecutors Regarding Criminal Discovery Involving Forensic Evidence and Experts at 1 (Jan. 5, 2017), available here (noting that the 2017 memorandum "serves as an addendum to the Ogden Memo"); see id. (The Department's policy to provide discovery over and above the minimum legal thresholds applies to cases with forensic evidence."); see also Justice Manual § 9-5.001.B.1 ("[P]rosecutors generally must take a broad view of materiality and err on the side of disclosing exculpatory and impeaching evidence.").
[10] Strickler, 527 U.S. at 281 (citing Kyles, 514 U.S. at 460 (1995) (Scalia, J., dissenting)).
[11] Id.
[12] United States v. Safavian, 233 F.R.D. 12, 16 (2005), reconsideration denied, 233 F.R.D. 205, 206-07 (D.D.C. 2006); see also United States v. Olsen, 704 F.3d 1172, 1183 (9th Cir. 2013) ("A trial prosecutor's speculative prediction about the likely materiality of favorable evidence, however, should not limit the disclosure of such evidence, because it is just too difficult to analyze before trial whether particular evidence ultimately will prove to be 'material' after trial.") (citing United States v. Agurs, 427 US 97, 108 (1976), and United States v. Price, 566 F.3d 900, 907 (9th Cir. 2009)).
[13] Safavian, 233 F.R.D. at 16.
[14] See, e.g., Daniel S. Medwed, Brady's Bunch of Flaws, 67 Wash. & Lee L. Rev. 1533, 1542-43 & nn.51-56 (2010) (noting cognitive bias can cause prosecutors to "process information selectively"); United States v. Nejad, __ F. Supp. 3d __, 2020 WL 5549931, at *7-8, *13 (S.D.N.Y. Sept. 16, 2020) (noting government's concession that "trial blinders" caused prosecutors to miss key evidence's exculpatory value).
[15] See, e.g., United States v. Rigas, 779 F. Supp. 2d 408, 415 n.5 (M.D. Pa. 2011) ("We will not allow this case to devolve into one that sacrifices the Defendants' due process rights based on an overly restrictive interpretation of the Government's [disclosure] obligations.").
[16] Safavian, 233 F.R.D. at 16-17 (collecting cases); see United States v. Bundy, 968 F.3d 1019, 1033 (9th Cir. 2020) ("[T]he retrospective definition of materiality is appropriate only in the context of appellate review"; thus, "trial prosecutors must disclose favorable information without attempting to predict whether its disclosure might affect the outcome of the trial." (quoting United States v. Olsen, 704 F.3d 1172, 1183 (9th Cir. 2013))).
[17] See Agurs, 427 US at 110.
[18] E.g., Cone, 556 US at 470 n.15; Kyles, 514 US at 439; Agurs, 427 US at 109.
[19] See 18 U.S.C. § 3500(a) (prohibiting compelled discovery of any statement by a prospective government witness until after the witness has testified on direct examination); Fed. R. Crim. P. 16(a)(2) (excluding from government's discovery obligation any "statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500"); Justice Manual 9-5001.D.2 (claiming that impeachment information need not be disclosed until Jencks statements); United States v. Alvarez, 358 F.3d 1194, 1211 (9th Cir. 2004) ("When the defense seeks evidence which qualifies as both Jencks Act and Brady material, the Jencks Act standards control."); United States v. Causey, 356 F. Supp. 2d 681, 698 (S.D. Tex. 2005) ("Although courts in other circuits have held that the constitutional dictates of Brady govern the disclosure of evidence that can reasonably be classified as both Brady and Jencks material, the law in this circuit is that when evidence is subject to both Brady and Jencks, the timing of its production is governed by the Jencks Act.") (citations omitted); United States v. Beckford, 962 F. Supp. 780, 794 (E.D. Va. 1997) ("In this case, the balancing of the interests underlying Brady and Jencks does not require, except in the limited circumstances set forth below, that disclosure of evidence constituting both Brady and Jencks material be made earlier than is provided by the Jencks Act, as modified by the Government's previous agreement to provide disclosure at an earlier date.").
[20] See, e.g., Coppa, 267 F.3d at 145-46 (noting that Brady's constitutional obligation prevails over the Jencks statute if they conflict); United States v. Presser, 844 F.2d 1275, 1285 (6th Cir.1988) (stating that Brady material, which was arguably exempt from pretrial disclosure by Jencks Act, must be disclosed in time for effective use at trial); United States v. Starusko, 729 F.2d 256, 263 (3d Cir. 1984) ("[C]ompliance with the statutory requirements of the Jencks Act does not necessarily satisfy the due process concerns of Brady."); United States v. Lujan, 530 F. Supp. 2d 1224, 1256 (D.N.M. 2008) ("In this case, the Government at the hearing stated its position that Brady 'trumps' the Jencks Act, a position with which I agree. Jencks Act statements that also constitute Brady material should thus be disclosed according to the Brady deadlines set forth below.").
[21] The prosecution's Brady obligations concern exculpatory or impeaching information, "without regard to whether that information has been recorded in tangible form." United States v. Rodriguez, 496 F.3d 221, 225 (2d Cir. 2007).
[22] 18 U.S.C. § 3500(e); Fed. R. Crim. P. 26.2(f).
[23] See United States v. Bagley, 473 U.S. 667, 676 (1985); Giglio v. United States, 405 U.S. 150, 154 (1972).
[24] "There is no general constitutional right to discovery in a criminal case, and Brady did not create one." Weatherford v. Bursey, 429 U.S. 545, 559 (1977); accord Agurs, 427 U.S. at 107.
[25] See Strickler, 527 U.S. at 281; Kyles, 519 U.S. at 438-40; Coppa, 267 F.3d at 140.
[26] See, e.g., Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001) ("It is not feasible or desirable to specify the extent or timing of [the] disclosure Brady and its progeny require, except in terms of the sufficiency, under the circumstances, of the defense’s opportunity to use the evidence when disclosure is made.").
[27] Coppa, 267 F.3d at 142 (collecting cases); see also Rodriguez, 496 F.3d at 226.
[28] E.g., Order, United States v. Pizarro, No. 17-cr-151, Dkt. 129 (S.D.N.Y. May 16, 2018); United States v. Alvin, 30 F. Supp. 3d 323, 330, 332 (E.D. Pa. 2014).
[29] See, e.g., Leka, 257 F.3d at100-03, 107.
[30] See Bundy, 968 F.3d at 1023, 1041-45.
[31] See, e.g., Coppa, 267 F.3d at 146 (remanding case for district court "to determine what disclosure order, if any, it deems appropriate as a matter of case management"); Starusko, 729 F.2d at 261; United States v. Campagnuolo, 592 F.2d 852, 857 n.2 (5th Cir. 1979).
[32] See, e.g., United States v. Adan, 913 F. Supp. 2d 555, 586 (M.D. Tenn. 2012) (42 days); Acosta, 357 F. Supp. 2d at 1247 (60 days).
[33] United States v. Shalon, 15-cr-333-LTS, 2020 WL 6873447, at *1 (S.D.N.Y. Nov. 23, 2020).
[34] United States v. Wood, 57 F.3d 733, 737 (9th Cir. 1995).
[35] See Kyles, 514 US at 437 (emphasizing that the government "has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case"); Bundy, 968 F.3d at 1037 ("As a matter of law, the prosecution is deemed to have knowledge of and access to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant.") (citation omitted).
[36] United States v. Gupta, 848 F. Supp. 2d 491, 493 (S.D.N.Y. 2012).
[37] United States v. Martoma, 990 F. Supp. 2d 458, 461 (S.D.N.Y. 2014); see also Memorandum for Department Prosecutors, US Dep't of Justice, Guidance for Prosecutors Regarding Criminal Discovery (Jan. 4, 2010), (listing several factors relevant to this fact-specific inquiry); United States v. Middendorf, No. 18-cr-36, 2018 WL 3956494, at *4 (S.D.N.Y. Aug. 17, 2018) (same).
[38] United States v. Harry, No. No. 10-cr-1915, 2014 WL 6065672, at *4 (D.N.M. Oct. 10, 2014) (quoting Ogden Memo at 1).
[39] See Wood, 57 F.3d at 737 (vacating conviction for defrauding the Food and Drug Administration for failure to produce drug applications in FDA's possession that would have impeached FDA witness); Olsen, 704 F.3d at 1178-83 (finding Brady suppression of state police internal investigation of forensic chemist witness in federal chemical weapons trial); Carriger v. Stewart, 132 F.3d 463, 479-80 (9th Cir. 1997) (en banc) (evidence from corrections file of prosecution witness impeaching his credibility should have been disclosed under Brady).
[40] United States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005) (endorsing continuance as desirable remedy); United States v. Gasim Al-Dabbi, 388 F.3d 1145, 1149 (8th Cir. 2004) (accepting continuance as an acceptable remedy).
[41] Robert M. Cary et al., Federal Criminal Discovery 396 (2011) ("[T]he court may employ curative jury instructions to alleviate the prejudicial impact of any evidence that was previously admitted without the benefit of proper discovery. Or, the court may permit the innocent party to recall previously excused witnesses, or make a new opening statement, to make use of belatedly produced information.").
[42] Id.
[43] United States v. Garrison, 888 F.3d 1057, 1061 (9th Cir. 2018) (jury instruction that "the government's failure to timely comply with its constitutional obligations … could lead the jury to find reasonable doubt as to guilt" (cited with approval in Ninth Circuit Model Crim. Jury Instr. 4.20)); Mem. Supp. Def.'s Post-Trial Mot. for J. of Acquittal or in the Alternative for a New Trial at 102, United States v. Nejad, No. 18-cr-224, Dkt. 336 (S.D.N.Y. May 1, 2020) (describing stipulation and curative instruction given as a result of Brady violation); Trial Tr. at 6, United States v. Slough, No. 08-cr-360, Dkt. 637 (D.D.C. Aug. 5, 2014) (curative instruction due to Brady violation and indication that government would be required to recall witnesses at defense’s request).
[44] Leipold & Henning, 2 Fed. Prac. & Proc. Crim. § 256 & n.49.50; United States v. Presser, 844 F.2d 1275, 1286 (6th Cir. 1988) ("The decisions which have construed the Brady doctrine make it absolutely clear that the remedy for a Brady violation is a new trial ….").
[45] See, e.g., id. § 256 & n.50; Bundy, 968 F.3d at 1043-44 (affirming dismissal with prejudice in part because "any lesser sanction w[ould] put the defense at a greater disadvantage than it would have faced had the government produced the Brady material in the first place"); see also United States v. Govey, 284 F. Supp. 3d 1054, 1064 (C.D. Cal. 2018) (dismissing because government's eve-of-trial production required a continuance that would violate Speedy Trial Act); Commonwealth v. Martorano, 741 A.2d 1221 (holding that state Double Jeopardy Clause bars retrial where deliberate Brady violations denied defendant a fair trial); Commonwealth v. Johnson, No. 0118-97; 1537-97 (Pa. Ct. C.P. Oct. 29, 2020) (granting motion to dismiss indictments under state Double Jeopardy Clause based on egregious prosecutorial misconduct in withholding Brady evidence at trial).
[46] See In re Special Proceedings, 842 F. Supp. 2d 232, 235, 241-46 (D.D.C. 2012) (describing post-dismissal investigations in the Senator Stevens case); Nejad, 2020 WL 5549931, at *4, 14-15.
[47] Eighth Circuit Judicial Council, Model Written Order, Oct. 30, 2020; accord In re Interim Order Regarding the "Due Process Protections Act," Misc. No. 2:20-mc-01464-MRH (W.D. Pa. Oct. 28, 2020); In Re Due Process Protections Act, No. 3:20-mc-20-J-32, Standing Order Regarding Due Process Protections Act (M.D. Fla. Dec. 1, 2020); In re Compliance with the Due Process Protections Act, Gen. Order 21-01 (N.D. Ok. Jan. 12, 2021); In re Due Process Protections Act, Gen. Order No. 389 (D. Id. Jan. 26, 2021).
[48] Judge Laura Taylor Swain has entered substantially similar orders including an affirmative duty to seek out exculpatory evidence and produce it promptly subject to potential sanctions in most or all of her cases. See, e.g., United States v. Rodriguez-Perez, No. 10-cr-905, 2020 WL 6487509 (S.D.N.Y. Nov. 4, 2020); Shalon, 2020 WL 6873447.
[49] Discovery Order No. 1, United States v. Rainey, No. 12-cr-291, Dkt. 172 (E.D. La. Aug. 11, 2014).
[50] Id. at 2, 4. The order also required compliance with the US Attorney's Manual section, Local Criminal Rule, and Louisiana Rule of Professional Conduct regarding productions of such evidence. Id. at 9.
[51] Id. at 4.
[52] Id. at 3.
[53] Id. at 9.
[54] Id. at 6-7.
