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
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.
This Act may be cited as the
Fairness in Disclosure of Evidence Act
Duty to disclose favorable information
Chapter 201 of title 18, United States Code, is amended by adding at the end the following:
Duty to disclose favorable information
In this section—
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—
the determination of guilt;
any preliminary matter before the court before which the criminal prosecution is pending; or
the sentence to be imposed; and
the term prosecution team includes, with respect to a criminal prosecution brought by the United States—
the Executive agency, as defined in section 105 of title 5, that brings the criminal prosecution on behalf of the United States; and
any entity or individual, including a law enforcement agency or official, that—
acts on behalf of the United States with respect to the criminal prosecution;
acts under the control of the United States with respect to the criminal prosecution; or
participates, jointly with the Executive agency described in subparagraph (A), in any investigation with respect to the criminal prosecution.
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—
that is within the possession, custody, or control of the prosecution team; or
the existence of which is known, or by the exercise of due diligence would become known, to the attorney for the Government.
Except as provided in subsections (e) and (f), the attorney for the Government shall provide to the defendant any covered information—
without delay after arraignment and before the entry of any guilty plea; and
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.
Relationship to other laws
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).
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.
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—
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
the United States establishes a reasonable basis to believe that—
the identity of the potential witness is not already known to any defendant; and
disclosure of the covered information to a defendant would present a threat to the safety of the potential witness or of any other person.
The court may delay disclosure of covered information under this subsection until the earlier of—
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
the date on which any requirement under paragraph (1) ceases to exist.
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—
may not file a motion under this subsection ex parte; and
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.
A defendant may not waive a provision of this section except in open court.
The court may not accept the waiver of a provision of this section by a defendant unless the court determines that—
the proposed waiver is knowingly, intelligently, and voluntarily offered; and
the interests of justice require the proposed waiver.
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.
If the court determines under paragraph (1) that the United States is not in compliance with subsection (b) or subsection (c), the court shall—
determine the extent of and reason for the noncompliance; and
enter into the record the findings of the court under subparagraph (A).
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.
Types of remedies
A remedy under this subsection may include—
postponement or adjournment of the proceedings;
exclusion or limitation of testimony or evidence;
ordering a new trial;
dismissal with or without prejudice; or
any other remedy determined appropriate by the court.
In fashioning a remedy under this subsection, the court shall consider the totality of the circumstances, including—
the seriousness of the violation;
the impact of the violation on the proceeding;
whether the violation resulted from innocent error, negligence, recklessness, or knowing conduct; and
the effectiveness of alternative remedies to protect the interest of the defendant and of the public in assuring fair prosecutions and proceedings.
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).
In this paragraph, the term
a Federal Public Defender Organization;
a Community Defender Organization; and
a fund established to furnish representation to persons financially unable to obtain adequate representation in accordance with section 3006A.
Source of payments for costs and expenses
Costs and expenses ordered by a court under subparagraph (A)—
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
may not be paid from the appropriation under section 1304 of title 31.
Payments to qualifying entities
Costs and expenses ordered by the court under subparagraph (A) to a qualifying entity shall be paid—
to the Community Defender Organization that provided the appointed attorney; or
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.
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.
Technical and conforming amendments
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.
Demands for production of statements and reports of witnesses
of title 18, United States Code, is amended by striking
Except as provided in section 3014, in.