[Congressional Record Volume 166, Number 163 (Monday, September 21, 2020)]
[House]
[Pages H4582-H4583]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      DUE PROCESS PROTECTIONS ACT

  Ms. JACKSON LEE. Mr. Speaker, I move to suspend the rules and pass 
the bill (S. 1380) to amend the Federal Rules of Criminal Procedure to 
remind prosecutors of their obligations under Supreme Court case law.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                                S. 1380

       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 ``Due Process Protections 
     Act''.

     SEC. 2. REMINDER OF PROSECUTORIAL OBLIGATIONS.

       Rule 5 of the Federal Rules of Criminal Procedure is 
     amended--
       (1) by redesignating subsection (f) as subsection (g); and
       (2) by inserting after subsection (e) the following:
       ``(f) Reminder of Prosecutorial Obligation.--
       ``(1) In general.--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 to prosecution and defense counsel 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.
       ``(2) Formation of order.--Each judicial council in which a 
     district court is located shall promulgate a model order for 
     the purpose of paragraph (1) that the court may use as it 
     determines is appropriate.''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from 
Texas (Ms. Jackson Lee) and the gentleman from North Dakota (Mr. 
Armstrong) each will control 20 minutes.
  The Chair recognizes the gentlewoman from Texas.


                             General Leave

  Ms. JACKSON LEE. Mr. Speaker, I ask unanimous consent that all 
Members have 5 legislative days to revise and extend their remarks and 
include extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentlewoman from Texas?
  There was no objection.
  Ms. JACKSON LEE. Mr. Speaker, I yield myself such time as I may 
consume.
  S. 1380, the Due Process Protection Act, introduced by Senators Dan 
Sullivan and Dick Durbin and passed by unanimous consent in the Senate 
this past May, is a narrowly tailored, bipartisan bill that would 
reinforce the government's already existing constitutional obligation 
to disclose exculpatory evidence. Sometimes, of course, that evidence 
can be the difference between innocence and conviction and fairness to 
both the government and the defendant.
  The Due Process Clause of the United States Constitution requires 
that prosecutors disclose to the accused all favorable evidence that is 
material. Unfortunately, at this time, there are inadequate safeguards 
in Federal law to ensure that this practice is followed across the 
country.
  According to the National Registry of Exonerations, from 1989 to 
2017, prosecutors concealed exculpatory evidence at trial in half of 
all murder exonerations. Although this statistic includes State 
prosecutions, we know that exculpatory evidence is concealed in Federal 
cases as well.
  Mr. Speaker, I have been involved in criminal justice reform for a 
very long time, and I have seen the damage that

[[Page H4583]]

not exposing or disclosing exculpatory evidence can do and how it is an 
imbalance as it relates to defendants who happen to be Brown or Black. 
That is unfair, and I know the America that I have come to know and 
love understands that justice should be equal for all.
  Again, one prominent example of the failure to disclose exculpatory 
evidence was in the 2008 trial of then-Senator Ted Stevens. When it was 
later revealed that the Justice Department had committed misconduct by 
failing to turn over exculpatory evidence, the judge in that case 
concluded that he could not sanction the prosecutors because he had not 
issued a direct written court order requiring them to abide by their 
ethical and constitutional obligations to disclose favorable evidence.
  Many of us who knew that case, who knew Senator Stevens, knew, of 
course, that he had experienced an injustice.
  Following the Stevens case, in June 2018, the District Court for the 
District of Columbia, where the case was tried, amended its local rules 
to require prosecutors to comply with their disclosure obligations. 
Other Federal districts had already and have since issued specific 
local rules or standing orders that govern these obligations.
  A 2011 survey by the Federal Judicial Center indicated that 38 of the 
94 Federal districts had a local rule or standing order confirming the 
government's obligation to disclose exculpatory and/or questioning the 
credibility of witnesses, which is known as impeachment, material.

                              {time}  1445

  To address this issue, the Due Process Protections Act would do three 
things, three very vital things to the scales of justice: One, amend 
the Federal Rules of Criminal Procedure to require that a judge issue 
an order to prosecution and defense counsel that confirms the 
disclosure obligation of the prosecutors in every criminal case;
  Two, require each judicial council in which a district court is 
located to issue a model order that its courts can use at their 
discretion; and,
  Three, leave it to the courts in each district to detail the 
parameters of their order.
  Mr. Speaker, I have had the opportunity to meet with our Federal 
judges in our jurisdiction over the years, and I know that our 
discussions always fall on how we can enhance justice and be fair to 
all parties in the courthouse.
  Criminal justice winds up with the defendant, if convicted, to lose 
their due process rights. Clearly, this is an important and significant 
legislation that protects all parties, but particularly when someone is 
subject to losing their due process rights or their freedom.
  And so I support this legislation because, significantly, the bill 
would not impose any new requirements on prosecutors. It would simply 
require them to follow the Constitution or risk being sanctioned by the 
court.
  It is a breath of fresh air to see the Constitution being raised over 
and over again for the good aspects of what American democracy is all 
about. The pillars upon which it is built are clearly that of justice 
and equality and fairness in our judicial system.
  Accordingly, this is a straightforward and bipartisan measure that 
would help our criminal justice system operate in a more effective and 
fair manner.
  Mr. Speaker, I reserve the balance of my time.
  Mr. ARMSTRONG. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I rise in support of S. 1380, the Due Process 
Protections Act.
  This is a commonsense, bipartisan bill that will reinforce 
constitutional protections for criminal defendants.
  This bill amends the Federal Rules of Criminal Procedure to require a 
judge to issue a Brady order, reminding prosecutors of their obligation 
to disclose all evidence that is material to the case, especially 
exculpatory evidence.
  Although some judges already have a practice of issuing Brady orders, 
this bill will require all judges to issue it in all criminal 
proceedings.
  Our criminal justice system falls short when key evidence is withheld 
by prosecutors and revealed years later at a conviction. Due process is 
a fundamental right of all Americans; so is the right to a fair trial, 
protected by the Constitution and this bill helps guarantee that 
fundamental right.
  I urge my colleagues to join me in supporting this bill, and I yield 
back the balance of my time.
  Ms. JACKSON LEE. Mr. Speaker, I yield myself such time as I may 
consume.
  I thank my friend and colleague from North Dakota for his leadership.
  I thank, again, the chairman and ranking member of the full committee 
and our subcommittee chairpersons and ranking members.
  Mr. Speaker, let me just say that, as I indicated, it is with an 
enormous sense of pride and recognition and a breath of fresh air when 
we talk about the Constitution in this hallowed place, because this 
House and the other body are grounded in our appreciation and adherence 
to the Constitution.
  That is what this bill is: due process protections and dealing with 
the Bill of Rights, and the right to due process that we find in the 
14th Amendment and the Fifth Amendment. So I am delighted that the Due 
Process Protections Act is now recognized, and it is a commonsense, 
bipartisan measure.
  How much better we will be when all of the judicial districts require 
exculpatory evidence to be presented, because then you know that you 
have given all parties their fair chance, and someone who might lose 
their liberty, you give them a fair chance by putting forward all of 
the evidence that may be exculpatory.
  So it is narrowly tailored to ensure that Federal prosecutors simply 
follow the law, as they already should, in every case.
  I strongly urge my colleagues to support this breath of fresh air in 
the recounting of the Constitution, a document that continues to live 
in 2020 so that it will become law and order.
  Again, I ask my colleagues to support this legislation, and I yield 
back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentlewoman from Texas (Ms. Jackson Lee) that the House suspend the 
rules and pass the bill, S. 1380.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

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