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Senate of Pennsylvania
Session of 2017 - 2018 Regular Session


Posted: March 12, 2018 03:44 PM
From: Senator Stewart J. Greenleaf
To: All Senate members
Subject: Brady Violations and Other Disclosures by Prosecutors
I will be introducing a resolution to urge the Supreme Court of Pennsylvania to make certain rule changes that it is currently considering. These rule changes relate to the disclosure of so-called Brady materials by prosecutors and the steps that a prosecutor should take to remedy a conviction when the prosecutor learns of information leading to a reasonable belief that a convicted defendant is actually innocent.

In 1963, the U.S. Supreme Court issued a landmark ruling in Brady v Maryland that prosecutors must reveal materially exculpatory evidence in their possession that is favorable to the defense. If a prosecutor fails to disclose such evidence under the “Brady rule,” the evidence would be suppressed. If the violation is discovered after a person has been convicted, a motion could be filed with the court requesting that the conviction be vacated, or file an appeal.

Even with the judicial system’s long practice with the “Brady rule,” problems continue with the withholding of evidence by prosecutors to the defense. In many cases, prosecutors make mistakes in good faith about whether information should be shared with the defense. Misconduct by police and prosecutors does, however, occur. According to an article in In Justice Today (Jan. 5, 2018) entitled “The Epidemic of Brady Violations: Explained,” “In courtrooms across America, prosecutors regularly withhold evidence from the defense that could blow holes in their cases.”

Over 250 individuals have been exonerated in the United States on the strength of DNA evidence after serving an average of 12 years in prison for crimes that they did not commit. Twelve of those documented DNA exonerations involved Pennsylvania inmates. Pennsylvania has no system of compensation for persons who are convicted and incarcerated despite being actually innocent of the crime, and governmental immunities make it nearly impossible for exonerated individuals to sue for compensation. We should not condone the punishment of the actually innocent and we should correct such systemic causes of wrongful convictions as eyewitness misidentifications, false confessions to police, jailhouse informant testimony, flawed forensic science, and misconduct or mistakes made in good faith by police or prosecutors.

My resolution would urge the Supreme Court of Pennsylvania to adopt and enforce changes to the Rules of Professional Conduct to clarify the role of prosecuting attorneys who learn of new credible evidence that makes it reasonably likely that a convicted individual was not in fact guilty of the crime. The rule changes under consideration would clarify that the prosecuting attorney should remedy the conviction by making a “disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant, and, where appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit the offense of which the defendant was convicted.”

My resolution would further urge the Supreme Court of Pennsylvania to adopt and enforce changes to the Rules of Criminal Procedure to ensure that prosecuting attorneys make available to the defendant the complete files of all law enforcement agencies, investigative agencies, and prosecutors’ offices involved in the investigation of the crimes alleged to have been committed, including the defendant’s statements, the statements of codefendants, witness statements, investigating officers’ notes, and the results of tests and examinations.

Please join me in sponsoring this resolution to emphasize that the Commonwealth’s prosecutors are not only advocates, but also ministers of justice.

Introduced as SR312