Fairness in Disclosure of Evidence Act of 2012 - Amends the federal criminal code to require the attorney for the government, in a criminal prosecution, to provide to the defendant any information or evidence that may reasonably appear to be favorable to the defendant regarding the determination of guilt, any preliminary matter before the cour, or the sentence to be imposed (covered information): (1) that is within the possession, custody, or control of the prosecution team; or (2) the existence of which is known, or through due diligence would become known, to that attorney.
Directs the government attorney to provide to the defendant any covered information: (1) without delay after arraignment and before the entry of any guilty plea; and (2) as soon as is reasonably practicable upon its becoming known, without regard to whether the defendant has entered or agreed to enter a guilty plea.
Authorizes the court, upon motion of the United States which the court may permit to be filed under seal to protect a witness's identity, to issue an order to protect against immediate disclosure if: (1) the covered information is favorable to the defendant solely because it would provide a basis to impeach the credibility of a potential witness, and (2) 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 would present a threat to anyone's safety.
Permits the court, under specified circumstances, to accept a waiver of this Act by a defendant. Prohibits a defendant from waiving a provision of this Act except in open court.
Requires the court to order an appropriate remedy upon determining that the United States has violated the requirement to disclose or to disclose in a timely manner and provides for payment of the defendant's costs.
[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>
Introduced in Senate
Read twice and referred to the Committee on the Judiciary. (text of measure as introduced: CR S1736-1737)
Committee on the Judiciary. Hearings held.
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