WHEREAS, it is the mission of the Philadelphia Bar Association to serve the profession and the public by promoting justice, professional excellence, and respect for the rule of law and, in so doing, the Association strives to foster understanding of, involvement in, and access to the justice system; and
WHEREAS, it is in the interest of all members of society that public trust in the criminal justice system be improved, and that “equal justice under the law” be not merely an aspiration but reality; and
WHEREAS, the Supreme Court Criminal Procedural Rules Committee has proposed amendments to Rule 573, Pennsylvania Rules of Criminal Procedure concerning Pre-Trial Discovery and Inspection; and
WHEREAS, the current Pennsylvania Rule of Criminal Procedure 573 (“Rule 573”) providing for the transfer of discovery in criminal cases in the Commonwealth is restrictive and requires prosecutors to make determinations of materiality; and
WHEREAS, requiring prosecutors to determine the materiality of a given piece of evidence puts the prosecutor in an unfair position and allows a prosecutor to withhold information the prosecutor deems incredible; and
WHEREAS, although prosecutors are constitutionally required to provide exculpatory evidence collected by other investigative agencies, the current Rule 573 provides inadequate guidelines to prosecutors for collecting such evidence from other prosecutorial stakeholders leaving the prosecutor susceptible to claims of withholding evidence; and
WHEREAS, the current Rule 573 does not define the types of information and materials to be provided to defense and does not account for more modern forms of communication than existed at the time of the current Rule’s passing; and
WHEREAS, the current Rule 573 allows prosecutors to withhold statements of testifying witnesses until ordered to produce them upon motion from defense; and
WHEREAS, when the Commonwealth engages an expert witness the current Rule 573 does not require the prosecutor to provide the data underlying the expert’s opinion leaving the defense incapable of countering such expertise with their own expert; and
WHEREAS, should either party fail to abide by the requirements of the current Rule 573 the court is left without adequate potential remedies to correct or address the situation; and
WHEREAS, 86 of the 137 (62.7%) recognized exonerations in Pennsylvania1 involve the withholding of exculpatory evidence from defense counsel at trial; and
WHEREAS, the revision to Rule 573 removes the materiality element and requires prosecutors to provide discoverable information whether they find it credible or not; and
WHEREAS, the revisions to Rule 573 expands the information to be provided in mandatory discovery by the Commonwealth to include law enforcement notes or reports made in response to and in investigation of the instant case; photographs, audio, video, or other electronic recordings, including the recordings from body or dashboard cameras and other recordings in the possession of law enforcement; fingerprints, or other tangible information; and
WHEREAS, the revisions to Rule 573 also require the Commonwealth to disclose in mandatory discovery the names and all written or recorded statements, and substantially verbatim oral statements, of fact witnesses the Commonwealth intends to call at trial, and all written and recorded statements, and substantially verbatim oral statements, made by co-defendants, and by co-conspirators or accomplices, whether such individuals have been charged or not; and
WHEREAS, the revisions to Rule 573 allows the defense to request that the Commonwealth provide underlying data upon which scientific tests or opinions are based; and
WHEREAS, the revisions to Rule 573 provide for a continuing duty to disclose information whether in the control of the prosecutor or defense attorney or members of their staff or any others who report to said prosecutor or defense attorney; and
WHEREAS, the revisions to Rule 573 place a responsibility on the Commonwealth to notify defense counsel and the court of additional information, including the identity of additional witnesses who could undermine an aspect of the Commonwealth’s case, even where that information is uncovered following trial but before sentence is final; and
WHEREAS, under the revisions of Rule 573 the Court has remedies for noncompliance by either the Commonwealth or defense counsel including an order of dismissal should the Commonwealth fail to comply with its obligations or an order of contempt against either a noncomplying prosecutor or defense attorney; and
WHEREAS, the adoption of the proposed amendments to Rule 573 would heighten public confidence in our prosecutorial agencies and enhance public confidence in the integrity, accuracy, and fairness of trials; and
NOW, THEREFORE, BE IT RESOLVED, that the Philadelphia Bar Association supports in principle the proposed amendments to Rule 573;
AND BE IT FURTHER RESOLVED, that the Board of Governors approves the submission of a comment letter to Supreme Court of Pennsylvania Criminal Rules Committee representing the position of the Philadelphia Bar Association supporting the adoption of proposed amendments to Rule 573 and authorizes the Chancellor or the Chancellor’s designee to take such other action as may be appropriate to effectuate this resolution.
PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
Adopted: September 26, 2024
1 See National Registry of Exonerations, available at https://www.law.umich.edu/special/exoneration/Pages/detaillist.aspx?View={FAF6EDDB-5A68-4F8F-8A52-2C61F5BF9EA7}&FilterField1=ST&FilterValue1=PA&FilterField2=OM%5Fx0020%5FTags&FilterValue2=WH.
