[Congressional Record Volume 158, Number 43 (Thursday, March 15, 2012)]
[Senate]
[Pages S1734-S1737]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Ms. MURKOWSKI (for herself, Mr. Inouye, Mrs. Hutchison, Mr. 
        Begich, and Mr. Akaka):
  S. 2197. 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; to 
the Committee on the Judiciary.
  Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the text 
of the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2197

       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.

[[Page S1737]]

       ``(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''.
                                 ______