Pennsylvania

Overview

Pennsylvania presents a striking dichotomy in its treatment of Brady and Giglio obligations. On the one hand, it is home to some of the nation’s most progressive prosecutorial offices—such as Philadelphia and Allegheny County—which have developed comprehensive “Do Not Call” or Giglio lists. On the other hand, the state lacks any statutory requirement, centralized database, or uniform standard for disclosing officer misconduct statewide. The Commonwealth’s fragmented structure—67 independently elected District Attorneys and more than 1,000 municipal police departments—ensures that disclosure practices vary widely. Moreover, restrictive interpretations of public records laws and strong police union protections continue to obscure access to internal discipline records. In Pennsylvania, prosecutorial candor exists in pockets of reform—but is not embedded in the system itself.

Brief Description of Legal Landscape

Criminal prosecutions in Pennsylvania are overseen by County District Attorneys in each of the 67 counties. The Pennsylvania Attorney General may prosecute statewide matters or intervene in conflicts, but does not supervise local prosecutors.

Disclosure obligations are shaped by:

• Pennsylvania Rules of Criminal Procedure Rule 573(B)(1): Requires the disclosure of any evidence “material to the preparation of the defense,” including impeachment evidence.

• Rules of Professional Conduct, Rule 3.8(d): Mandates disclosure of all known information that tends to negate guilt or mitigate punishment.

• Pennsylvania Right-to-Know Law (RTKL): Governs public access to government records but broadly exempts police internal affairs and personnel records.

There is no statutory requirement that law enforcement agencies report sustained misconduct to prosecutors, nor must prosecutors maintain or publish Giglio lists. The Pennsylvania State Police operates separately from municipal agencies and does not share internal affairs records unless compelled.

Police officers are certified through Municipal Police Officers’ Education and Training Commission (MPOETC), which may decertify officers, but does not flag Giglio-related misconduct or coordinate with prosecutors.

Historical Context

Pennsylvania’s history of wrongful convictions and law enforcement misconduct has prompted growing calls for reform, particularly from within its major cities. The Philadelphia District Attorney’s Office, under Larry Krasner, made national headlines in 2018 when it released a list of more than 60 police officers barred from testifying due to credibility concerns. This list, known as the Disclosure Database, marked one of the first public-facing efforts to institutionalize Giglio accountability.

In contrast, other counties—including many rural and suburban jurisdictions—still lack formal Brady protocols, Giglio tracking, or written disclosure policies. This uneven landscape means that two defendants facing identical charges in neighboring counties may experience vastly different levels of transparency.

Additionally, the Pennsylvania State Police have repeatedly denied access to internal affairs records in civil rights cases and media inquiries, citing the RTKL. Even in Philadelphia, where reform is furthest along, defense attorneys often face delays or resistance when requesting officer discipline files not already catalogued in the Disclosure Database.

Legal Framework and Precedents

Constitutional Provisions and State Statutes

Pennsylvania’s Constitution ensures due process under Article I, Section 9, and confrontation rights under Section 9, paralleling federal standards.

Key authorities include:

• Pa.R.Crim.P. 573: Requires the Commonwealth to disclose any evidence favorable to the accused, including impeachment material.

• Pa.R.P.C. Rule 3.8(d): Obliges prosecutors to disclose all known mitigating or exculpatory evidence.

• RTKL (65 P.S. § 67.101 et seq.): Presumes public access to records but exempts many categories of police misconduct files unless criminal charges or formal discipline are involved.

No statute mandates the creation or maintenance of Brady/Giglio lists, and no statewide guidance governs inter-agency coordination between law enforcement and prosecutors on disclosure.

Relevant Case Law and Judicial Interpretations

• Commonwealth v. Burke, 566 Pa. 402 (2001): Reaffirmed the Commonwealth’s duty to disclose exculpatory and impeachment evidence under Brady and Giglio.

• Commonwealth v. Johnson, 588 Pa. 213 (2006): Clarified that impeachment material must be disclosed even if it concerns a police officer’s unrelated misconduct.

• Commonwealth v. Lambert, 584 Pa. 461 (2005): The court found that the prosecution violated Brady by failing to disclose impeaching evidence about a witness’s credibility, emphasizing materiality over strict timelines.

Although courts have routinely emphasized the importance of disclosure, they have not imposed uniform procedural standards or tracking obligations on prosecutors or police departments.

Implementation and Enforcement

Law Enforcement Policies and Training

Most law enforcement agencies in Pennsylvania operate without formal policies requiring them to notify prosecutors when an officer is disciplined for dishonesty, bias, or use-of-force violations. Some departments—especially in larger jurisdictions—share such findings informally, but there is no statewide requirement or penalty for failing to do so.

The MPOETC may revoke or suspend officer certification, particularly for criminal convictions or egregious misconduct. However, these decertifications are not typically flagged for Giglio purposes and are not automatically communicated to the District Attorneys of jurisdictions in which the officer has testified or may testify.

Police training programs in the state do not include standard curriculum modules on Brady/Giglio implications, and few departments conduct ongoing training on testimonial integrity.

Meanwhile, some District Attorneys’ offices—including in Philadelphia, Allegheny, and Montgomery Counties—have developed internal databases or “No Call” lists to manage impeachment material related to law enforcement witnesses. However, these systems are not mandatory, and their transparency and effectiveness vary.

Oversight Mechanisms and Accountability Structures

There is no dedicated body in Pennsylvania that monitors Giglio compliance or audits prosecutorial disclosure practices. Misconduct complaints against attorneys are handled by the Disciplinary Board of the Supreme Court of Pennsylvania, but discipline for Brady violations is extremely rare.

The Philadelphia Police Department maintains an internal discipline system, but it has historically failed to notify prosecutors of sustained misconduct in a timely or thorough manner. Only through years of litigation, policy reform, and public pressure did the Philadelphia DA’s Office gain more direct access to disciplinary files.

In rural and suburban counties, defense attorneys often have no access to internal affairs records unless they secure a court order—despite constitutional entitlements to such evidence.

Case Studies from the State

Significant Cases Illustrating Issues of Candor

1. Philadelphia Police Disclosure List (2018–present)
   The DA’s office released a list of over 60 officers flagged for credibility concerns, including perjury, excessive force, racial bias, and dishonesty. The effort faced resistance from the Fraternal Order of Police, which sued to block publication, and led to several officers being pulled from witness duty.

2. Commonwealth v. Anthony Wright (1991–2016)
   Wright was convicted of rape and murder based in part on testimony from officers with credibility issues. DNA later exonerated him, and the case raised questions about prior suppression of police misconduct information that should have been disclosed under Giglio.

3. Allegheny County “Do Not Call” List (2020)
   The DA’s office confirmed it kept a private list of officers with Giglio-impairing histories, but the list was not public and not shared with defense counsel unless the officer was called as a witness. No clear policy governed the list’s creation or use.

Outcomes and Implications

These examples illustrate that in Pennsylvania, disclosure often depends more on institutional culture than legal obligation. In counties where prosecutors embrace transparency, some progress has been made. But elsewhere, officers with serious misconduct histories continue to testify without meaningful scrutiny, undermining due process and enabling wrongful convictions.

Challenges and Gaps

Identified Issues within the State’s System

• No Statewide Giglio Requirement: Disclosure is discretionary and nonuniform.

• Lack of Mandatory Notification by Police: Law enforcement agencies are not required to inform prosecutors about sustained misconduct.

• Opaque Disciplinary Records: The Right-to-Know Law allows departments to withhold most personnel records unless discipline results in criminal charges or final action.

• No Oversight or Training Mandates: There is no entity that trains or audits prosecutors on Brady/Giglio compliance.

Legislative and Institutional Barriers

Police unions and some prosecutors have resisted disclosure reforms, particularly public release of No Call lists. Efforts to pass legislation mandating officer misconduct reporting have failed or stalled in committee. The state’s political culture remains protective of law enforcement autonomy, and systemic reform has largely depended on local initiative rather than legislative mandate.

Recommendations

Suggested Improvements in Law, Policy, and Practice

1. Mandate Prosecutorial Giglio Lists
   Require all District Attorneys to maintain and update lists of officers with sustained misconduct relevant to credibility.

2. Enact Law Enforcement Reporting Requirements
   Require agencies to notify prosecutors within 30 days of sustained findings involving dishonesty, fabrication, racial bias, or rights violations.

3. Integrate MPOETC and Prosecutorial Functions
   Link decertification actions to Giglio notifications and require MPOETC to alert prosecutors when an officer’s conduct may impair courtroom integrity.

4. Amend Rule 573 to Specify Impeachment Disclosure
   Expand the rule to explicitly include sustained misconduct and internal affairs files in required pretrial discovery.

Recommendations for Enhanced Transparency and Accountability

1. Reform the Right-to-Know Law
   Permit the release of sustained misconduct records related to officer testimony and Giglio issues, with redactions for privacy and safety as appropriate.

2. Create a Public Officer Misconduct Registry
   Publish a statewide, redacted database of officers with confirmed findings that impair credibility, updated quarterly.

3. Mandate Brady/Giglio Training
   Require annual ethics and disclosure training for all prosecutors, investigators, and testifying officers as a condition of employment or certification.

4. Establish a Disclosure Oversight Body
   Create a nonpartisan commission to audit Giglio compliance, investigate systemic failures, and report findings publicly.

Conclusion

In Pennsylvania, the duty to tell the truth in the courtroom varies by ZIP code. While a handful of progressive counties have pioneered accountability through internal lists and policy reforms, the rest of the state remains governed by discretion, silence, and structural opacity. Candor should not be optional. For a state with some of the highest incarceration rates in the country and a painful history of wrongful convictions, truth must be traceable, enforceable, and universal. Pennsylvania knows what is required—it now must mandate it.