The Due Process Protections Act

Last week, Congress passed a new law that sharpens a fundamental rule of fairness in our system:

“In all criminal proceedings, on the first scheduled court date when both prosecutor and defense counsel are present, the judge shall issue an oral and written order … that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and the possible consequences of violating such order under applicable law.”

We’ve written about the Brady case before. It defined due process to mean that, if the government is going to accuse you of something, it must tell you about, and turn over, evidence it has that is favorable to you.

As we wrote then: “Brady is so important—so fundamental to a free, civilized society—that the idea of the government’s doing otherwise when it has all of its breathtaking resources, armies of investigators, and paramount access to information strikes one as un-American at a minimum and barbaric at most. It makes David versus Goliath look like ‘any given Sunday.’ And the results can be disastrous.”

The new rule isn’t brand new because many federal courts had already adopted it on their own.

But the practice will now grow more uniform across districts, where violating Brady will violate a direct court order in the case.