[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 2197 Introduced in Senate (IS)]

112th CONGRESS
  2d Session
                                S. 2197

   To require the attorney for the Government to disclose favorable 
 information to the defendant in criminal prosecutions brought by the 
                 United States, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 15, 2012

Ms. Murkowski (for herself, Mr. Inouye, Mrs. Hutchison, Mr. Begich, and 
  Mr. Akaka) introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To require the attorney for the Government to disclose favorable 
 information to the defendant in criminal prosecutions brought by the 
                 United States, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fairness in Disclosure of Evidence 
Act of 2012''.

SEC. 2. DUTY TO DISCLOSE FAVORABLE INFORMATION.

    Chapter 201 of title 18, United States Code, is amended by adding 
at the end the following:
``Sec. 3014. Duty to disclose favorable information
    ``(a) Definitions.--In this section--
            ``(1) the term `covered information' means information, 
        data, documents, evidence, or objects that may reasonably 
        appear to be favorable to the defendant in a criminal 
        prosecution brought by the United States with respect to--
                    ``(A) the determination of guilt;
                    ``(B) any preliminary matter before the court 
                before which the criminal prosecution is pending; or
                    ``(C) the sentence to be imposed; and
            ``(2) the term `prosecution team' includes, with respect to 
        a criminal prosecution brought by the United States--
                    ``(A) the Executive agency, as defined in section 
                105 of title 5, that brings the criminal prosecution on 
                behalf of the United States; and
                    ``(B) any entity or individual, including a law 
                enforcement agency or official, that--
                            ``(i) acts on behalf of the United States 
                        with respect to the criminal prosecution;
                            ``(ii) acts under the control of the United 
                        States with respect to the criminal 
                        prosecution; or
                            ``(iii) participates, jointly with the 
                        Executive agency described in subparagraph (A), 
                        in any investigation with respect to the 
                        criminal prosecution.
    ``(b) Duty To Disclose Favorable Information.--In a criminal 
prosecution brought by the United States, the attorney for the 
Government shall provide to the defendant any covered information--
            ``(1) that is within the possession, custody, or control of 
        the prosecution team; or
            ``(2) the existence of which is known, or by the exercise 
        of due diligence would become known, to the attorney for the 
        Government.
    ``(c) Timing.--Except as provided in subsections (e) and (f), the 
attorney for the Government shall provide to the defendant any covered 
information--
            ``(1) without delay after arraignment and before the entry 
        of any guilty plea; and
            ``(2) if the existence of the covered information is not 
        known on the date of the initial disclosure under this 
        subsection, as soon as is reasonably practicable upon the 
        existence of the covered information becoming known, without 
        regard to whether the defendant has entered or agreed to enter 
        a guilty plea.
    ``(d) Relationship to Other Laws.--
            ``(1) In general.--Except as provided in paragraph (2), the 
        requirements under subsections (b) and (c) shall apply 
        notwithstanding section 3500(a) or any other provision of law 
        (including any rule or statute).
            ``(2) Classified information.--Classified information (as 
        defined in section 1 of the Classified Information Procedures 
        Act (18 U.S.C. App.)) shall be treated in accordance with the 
        Classified Information Procedures Act.
    ``(e) Protective Orders.--
            ``(1) In general.--Upon motion of the United States, the 
        court may issue an order to protect against the immediate 
        disclosure to a defendant of covered information otherwise 
        required to be disclosed under subsection (b) if--
                    ``(A) the covered information is favorable to the 
                defendant solely because the covered information would 
                provide a basis to impeach the credibility of a 
                potential witness; and
                    ``(B) the United States establishes a reasonable 
                basis to believe that--
                            ``(i) the identity of the potential witness 
                        is not already known to any defendant; and
                            ``(ii) disclosure of the covered 
                        information to a defendant would present a 
                        threat to the safety of the potential witness 
                        or of any other person.
            ``(2) Time limit.--The court may delay disclosure of 
        covered information under this subsection until the earlier 
        of--
                    ``(A) the date that the court determines provides a 
                reasonable amount of time before the date set for trial 
                (which shall be not less than 30 days before the date 
                set for trial, absent a showing by the United States of 
                compelling circumstances); and
                    ``(B) the date on which any requirement under 
                paragraph (1) ceases to exist.
            ``(3) Motions under seal.--The court may permit the United 
        States to file all or a portion of a motion under this 
        subsection under seal to the extent necessary to protect the 
        identity of a potential witness, but the United States--
                    ``(A) may not file a motion under this subsection 
                ex parte; and
                    ``(B) shall summarize any undisclosed portion of a 
                motion filed under this subsection for the defendant in 
                sufficient detail to permit the defendant a meaningful 
                opportunity to be heard on the motion, including the 
                need for a protective order or the scope of the 
                requested protective order.
    ``(f) Waiver.--
            ``(1) In general.--A defendant may not waive a provision of 
        this section except in open court.
            ``(2) Requirements.--The court may not accept the waiver of 
        a provision of this section by a defendant unless the court 
        determines that--
                    ``(A) the proposed waiver is knowingly, 
                intelligently, and voluntarily offered; and
                    ``(B) the interests of justice require the proposed 
                waiver.
    ``(g) Noncompliance.--
            ``(1) In general.--Before entry of judgment, upon motion of 
        a defendant or by the court sua sponte, if there is reason to 
        believe the attorney for the Government has failed to comply 
        with subsection (b) or subsection (c), the court shall order 
        the United States to show cause why the court should not find 
        the United States is not in compliance with subsection (b) or 
        subsection (c), respectively.
            ``(2) Findings.--If the court determines under paragraph 
        (1) that the United States is not in compliance with subsection 
        (b) or subsection (c), the court shall--
                    ``(A) determine the extent of and reason for the 
                noncompliance; and
                    ``(B) enter into the record the findings of the 
                court under subparagraph (A).
    ``(h) Remedies.--
            ``(1) Remedies required.--
                    ``(A) In general.--If the court determines that the 
                United States has violated the requirement to disclose 
                covered information under subsection (b) or the 
                requirement to disclose covered information in a timely 
                manner under subsection (c), the court shall order an 
                appropriate remedy.
                    ``(B) Types of remedies.--A remedy under this 
                subsection may include--
                            ``(i) postponement or adjournment of the 
                        proceedings;
                            ``(ii) exclusion or limitation of testimony 
                        or evidence;
                            ``(iii) ordering a new trial;
                            ``(iv) dismissal with or without prejudice; 
                        or
                            ``(v) any other remedy determined 
                        appropriate by the court.
                    ``(C) Factors.--In fashioning a remedy under this 
                subsection, the court shall consider the totality of 
                the circumstances, including--
                            ``(i) the seriousness of the violation;
                            ``(ii) the impact of the violation on the 
                        proceeding;
                            ``(iii) whether the violation resulted from 
                        innocent error, negligence, recklessness, or 
                        knowing conduct; and
                            ``(iv) the effectiveness of alternative 
                        remedies to protect the interest of the 
                        defendant and of the public in assuring fair 
                        prosecutions and proceedings.
            ``(2) Defendant's costs.--
                    ``(A) In general.--If the court grants relief under 
                paragraph (1) on a finding that the violation of 
                subsection (b) or subsection (c) was due to negligence, 
                recklessness, or knowing conduct by the United States, 
                the court may order that the defendant, the attorney 
                for the defendant, or, subject to paragraph (D), a 
                qualifying entity recover from the United States the 
                costs and expenses incurred by the defendant, the 
                attorney for the defendant, or the qualifying entity as 
                a result of the violation, including reasonable 
                attorney's fees (without regard to the terms of any fee 
                agreement between the defendant and the attorney for 
                the defendant).
                    ``(B) Qualifying entities.--In this paragraph, the 
                term `qualifying entity' means--
                            ``(i) a Federal Public Defender 
                        Organization;
                            ``(ii) a Community Defender Organization; 
                        and
                            ``(iii) a fund established to furnish 
                        representation to persons financially unable to 
                        obtain adequate representation in accordance 
                        with section 3006A.
                    ``(C) Source of payments for costs and expenses.--
                Costs and expenses ordered by a court under 
                subparagraph (A)--
                            ``(i) shall be paid by the Executive 
                        agency, as defined in section 105 of title 5, 
                        that brings the criminal prosecution on behalf 
                        of the United States, from funds appropriated 
                        to that Executive agency; and
                            ``(ii) may not be paid from the 
                        appropriation under section 1304 of title 31.
                    ``(D) Payments to qualifying entities.--Costs and 
                expenses ordered by the court under subparagraph (A) to 
                a qualifying entity shall be paid--
                            ``(i) to the Community Defender 
                        Organization that provided the appointed 
                        attorney; or
                            ``(ii) in the case of a Federal Public 
                        Defender Organization or an attorney appointed 
                        under section 3006A, to the court for deposit 
                        in the applicable appropriations accounts of 
                        the Judiciary as a reimbursement to the funds 
                        appropriated to carry out section 3006A, to 
                        remain available until expended.
    ``(i) Standard of Review.--In any appellate proceeding initiated by 
a criminal defendant presenting an issue of fact or law under this 
section, the reviewing court may not find an error arising from conduct 
not in compliance with this section to be harmless unless the United 
States demonstrates beyond a reasonable doubt that the error did not 
contribute to the verdict obtained.''.

SEC. 3. TECHNICAL AND CONFORMING AMENDMENTS.

    (a) Table of Sections.--The table of sections for chapter 201 of 
title 18, United States Code, is amended by adding at the end the 
following:

``3014. Duty to disclose favorable information.''.
    (b) Demands for Production of Statements and Reports of 
Witnesses.--Section 3500(a) of title 18, United States Code, is amended 
by striking ``In'' and inserting ``Except as provided in section 3014, 
in''.
                                 <all>