II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Fairness in Disclosure 

5 of Evidence Act of 2012’’. 

6 SEC. 2. DUTY TO DISCLOSE FAVORABLE INFORMATION. 

7 Chapter 201 of title 18, United States Code, is 

8 amended by adding at the end the following: 


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1 ‘‘§ 3014. Duty to disclose favorable information 

2 ‘‘(a) DEFINITIONS.—In this section— 

3 ‘‘(1) the term ‘covered information’ means in4 formation, data, documents, evidence, or objects that 

5 may reasonably appear to be favorable to the de6 fendant in a criminal prosecution brought by the 

7 United States with respect to— 

8 ‘‘(A) the determination of guilt; 

9 ‘‘(B) any preliminary matter before the 

10 court before which the criminal prosecution is 

11 pending; or 

12 ‘‘(C) the sentence to be imposed; and 

13 ‘‘(2) the term ‘prosecution team’ includes, with 

14 respect to a criminal prosecution brought by the 

15 United States— 

16 ‘‘(A) the Executive agency, as defined in 

17 section 105 of title 5, that brings the criminal 

18 prosecution on behalf of the United States; and 

19 ‘‘(B) any entity or individual, including a 

20 law enforcement agency or official, that— 

21 ‘‘(i) acts on behalf of the United 

22 States with respect to the criminal pros23 ecution; 

24 ‘‘(ii) acts under the control of the 

25 United States with respect to the criminal 

26 prosecution; or 


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1 ‘‘(iii) participates, jointly with the Ex2 ecutive agency described in subparagraph 

3 (A), in any investigation with respect to 

4 the criminal prosecution. 

5 ‘‘(b) DUTY TO DISCLOSE FAVORABLE INFORMA6 TION.—In a criminal prosecution brought by the United 

7 States, the attorney for the Government shall provide to 

8 the defendant any covered information— 

9 ‘‘(1) that is within the possession, custody, or 

10 control of the prosecution team; or 

11 ‘‘(2) the existence of which is known, or by the 

12 exercise of due diligence would become known, to the 

13 attorney for the Government. 

14 ‘‘(c) TIMING.—Except as provided in subsections (e) 

15 and (f), the attorney for the Government shall provide to 

16 the defendant any covered information— 

17 ‘‘(1) without delay after arraignment and before 

18 the entry of any guilty plea; and 

19 ‘‘(2) if the existence of the covered information 

20 is not known on the date of the initial disclosure 

21 under this subsection, as soon as is reasonably prac22 ticable upon the existence of the covered information 

23 becoming known, without regard to whether the de24 fendant has entered or agreed to enter a guilty plea. 

25 ‘‘(d) RELATIONSHIP TO OTHER LAWS.— 


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1 ‘‘(1) IN GENERAL.—Except as provided in para2 graph (2), the requirements under subsections (b) 

3 and (c) shall apply notwithstanding section 3500(a) 

4 or any other provision of law (including any rule or 

5 statute). 

6 ‘‘(2) CLASSIFIED INFORMATION.—Classified in7 formation (as defined in section 1 of the Classified 

8 Information Procedures Act (18 U.S.C. App.)) shall 

9 be treated in accordance with the Classified Infor10 mation Procedures Act. 

11 ‘‘(e) PROTECTIVE ORDERS.— 

12 ‘‘(1) IN GENERAL.—Upon motion of the United 

13 States, the court may issue an order to protect 

14 against the immediate disclosure to a defendant of 

15 covered information otherwise required to be dis16 closed under subsection (b) if— 

17 ‘‘(A) the covered information is favorable 

18 to the defendant solely because the covered in19 formation would provide a basis to impeach the 

20 credibility of a potential witness; and 

21 ‘‘(B) the United States establishes a rea22 sonable basis to believe that— 

23 ‘‘(i) the identity of the potential wit24 ness is not already known to any defend25 ant; and 


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1 ‘‘(ii) disclosure of the covered infor2 mation to a defendant would present a 

3 threat to the safety of the potential witness 

4 or of any other person. 

5 ‘‘(2) TIME LIMIT.—The court may delay disclo6 sure of covered information under this subsection 

7 until the earlier of— 

8 ‘‘(A) the date that the court determines 

9 provides a reasonable amount of time before the 

10 date set for trial (which shall be not less than 

11 30 days before the date set for trial, absent a 

12 showing by the United States of compelling cir13 cumstances); and 

14 ‘‘(B) the date on which any requirement 

15 under paragraph (1) ceases to exist. 

16 ‘‘(3) MOTIONS UNDER SEAL.—The court may 

17 permit the United States to file all or a portion of 

18 a motion under this subsection under seal to the ex19 tent necessary to protect the identity of a potential 

20 witness, but the United States— 

21 ‘‘(A) may not file a motion under this sub22 section ex parte; and 

23 ‘‘(B) shall summarize any undisclosed por24 tion of a motion filed under this subsection for 

25 the defendant in sufficient detail to permit the 


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1 defendant a meaningful opportunity to be heard 

2 on the motion, including the need for a protec3 tive order or the scope of the requested protec4 tive order. 

5 ‘‘(f) WAIVER.— 

6 ‘‘(1) IN GENERAL.—A defendant may not waive 

7 a provision of this section except in open court. 

8 ‘‘(2) REQUIREMENTS.—The court may not ac9 cept the waiver of a provision of this section by a 

10 defendant unless the court determines that— 

11 ‘‘(A) the proposed waiver is knowingly, in12 telligently, and voluntarily offered; and 

13 ‘‘(B) the interests of justice require the 

14 proposed waiver. 

15 ‘‘(g) NONCOMPLIANCE.— 

16 ‘‘(1) IN GENERAL.—Before entry of judgment, 

17 upon motion of a defendant or by the court sua 

18 sponte, if there is reason to believe the attorney for 

19 the Government has failed to comply with subsection 

20 (b) or subsection (c), the court shall order the 

21 United States to show cause why the court should 

22 not find the United States is not in compliance with 

23 subsection (b) or subsection (c), respectively. 

24 ‘‘(2) FINDINGS.—If the court determines under 

25 paragraph (1) that the United States is not in comVerDate Mar 15 2010 22:42 Mar 15, 2012 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2197.IS S2197

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1 pliance with subsection (b) or subsection (c), the 

2 court shall— 

3 ‘‘(A) determine the extent of and reason 

4 for the noncompliance; and 

5 ‘‘(B) enter into the record the findings of 

6 the court under subparagraph (A). 

7 ‘‘(h) REMEDIES.— 

8 ‘‘(1) REMEDIES REQUIRED.— 

9 ‘‘(A) IN GENERAL.—If the court deter10 mines that the United States has violated the 

11 requirement to disclose covered information 

12 under subsection (b) or the requirement to dis13 close covered information in a timely manner 

14 under subsection (c), the court shall order an 

15 appropriate remedy. 

16 ‘‘(B) TYPES OF REMEDIES.—A remedy 

17 under this subsection may include— 

18 ‘‘(i) postponement or adjournment of 

19 the proceedings; 

20 ‘‘(ii) exclusion or limitation of testi21 mony or evidence; 

22 ‘‘(iii) ordering a new trial; 

23 ‘‘(iv) dismissal with or without preju24 dice; or 


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1 ‘‘(v) any other remedy determined ap2 propriate by the court. 

3 ‘‘(C) FACTORS.—In fashioning a remedy 

4 under this subsection, the court shall consider 

5 the totality of the circumstances, including— 

6 ‘‘(i) the seriousness of the violation; 

7 ‘‘(ii) the impact of the violation on the 

8 proceeding; 

9 ‘‘(iii) whether the violation resulted 

10 from innocent error, negligence, reckless11 ness, or knowing conduct; and 

12 ‘‘(iv) the effectiveness of alternative 

13 remedies to protect the interest of the de14 fendant and of the public in assuring fair 

15 prosecutions and proceedings. 

16 ‘‘(2) DEFENDANT’S COSTS.— 

17 ‘‘(A) IN GENERAL.—If the court grants re18 lief under paragraph (1) on a finding that the 

19 violation of subsection (b) or subsection (c) was 

20 due to negligence, recklessness, or knowing con21 duct by the United States, the court may order 

22 that the defendant, the attorney for the defend23 ant, or, subject to paragraph (D), a qualifying 

24 entity recover from the United States the costs 

25 and expenses incurred by the defendant, the atVerDate Mar 15 2010 22:42 Mar 15, 2012 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2197.IS S2197

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1 torney for the defendant, or the qualifying enti2 ty as a result of the violation, including reason3 able attorney’s fees (without regard to the 

4 terms of any fee agreement between the defend5 ant and the attorney for the defendant). 

6 ‘‘(B) QUALIFYING ENTITIES.—In this 

7 paragraph, the term ‘qualifying entity’ means— 

8 ‘‘(i) a Federal Public Defender Orga9 nization; 

10 ‘‘(ii) a Community Defender Organi11 zation; and 

12 ‘‘(iii) a fund established to furnish 

13 representation to persons financially un14 able to obtain adequate representation in 

15 accordance with section 3006A. 

16 ‘‘(C) SOURCE OF PAYMENTS FOR COSTS

17 AND EXPENSES.—Costs and expenses ordered 

18 by a court under subparagraph (A)— 

19 ‘‘(i) shall be paid by the Executive 

20 agency, as defined in section 105 of title 5, 

21 that brings the criminal prosecution on be22 half of the United States, from funds ap23 propriated to that Executive agency; and 

24 ‘‘(ii) may not be paid from the appro25 priation under section 1304 of title 31. 


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1 ‘‘(D) PAYMENTS TO QUALIFYING ENTI2 TIES.—Costs and expenses ordered by the court 

3 under subparagraph (A) to a qualifying entity 

4 shall be paid— 

5 ‘‘(i) to the Community Defender Or6 ganization that provided the appointed at7 torney; or 

8 ‘‘(ii) in the case of a Federal Public 

9 Defender Organization or an attorney ap10 pointed under section 3006A, to the court 

11 for deposit in the applicable appropriations 

12 accounts of the Judiciary as a reimburse13 ment to the funds appropriated to carry 

14 out section 3006A, to remain available 

15 until expended. 

16 ‘‘(i) STANDARD OF REVIEW.—In any appellate pro17 ceeding initiated by a criminal defendant presenting an 

18 issue of fact or law under this section, the reviewing court 

19 may not find an error arising from conduct not in compli20 ance with this section to be harmless unless the United 

21 States demonstrates beyond a reasonable doubt that the 

22 error did not contribute to the verdict obtained.’’. 


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1 SEC. 3. TECHNICAL AND CONFORMING AMENDMENTS. 

2 (a) TABLE OF SECTIONS.—The table of sections for 

3 chapter 201 of title 18, United States Code, is amended 

4 by adding at the end the following: 

‘‘3014. Duty to disclose favorable information.’’. 

5 (b) DEMANDS FOR PRODUCTION OF STATEMENTS

6 AND REPORTS OF WITNESSES.—Section 3500(a) of title 

7 18, United States Code, is amended by striking ‘‘In’’ and 

8 inserting ‘‘Except as provided in section 3014, in’’. 

Æ 


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