Securing Witness Statements in the Philadelphia Criminal Discovery Process

Securing Witness Statements in Philly Criminal Discovery: A Lawyer’s Guide

As a defense attorney in Philadelphia, securing comprehensive witness statements early in the discovery process is crucial for building an effective defense. But getting complete and reliable witness accounts can be tricky business in Philly’s complex criminal justice system. This article offers tips and guidance for attorneys on securing witness statements under Philadelphia’s criminal procedural rules and case law precedents. We’ll also discuss common challenges and strategies for overcoming them.

Discovery Rules in Philadelphia: An Overview

First, a quick primer on discovery in Philly criminal cases. The primary rules governing discovery are Pa.R.Crim.P. 573 and 573.1. In a nutshell, Rule 573 requires both the prosecution and defense to disclose information and materials “which are relevant to the instant case” – including witness names and statements. Rule 573.1 deals specifically with witness statements and requires the attorneys to provide any written or recorded statements by witnesses they plan to call at trial.

So in theory, the discovery rules provide for mutual sharing of witness statements between the defense and prosecution. But in practice, it doesn’t always work out so cleanly. The rules leave room for interpretation on what constitutes a complete witness statement. And prosecutors don’t always obtain thorough accounts from police officers or other state witnesses early on. As a result, securing comprehensive witness statements from all relevant parties can be an ongoing challenge.

Why Securing Witness Statements Matters

Getting witness statements early in the process serves some important purposes:

• It allows the defense to thoroughly investigate the charges and start preparing possible defenses.
• Complete statements may reveal inconsistencies or credibility issues that can be used to undermine the prosecution’s case.
• Strong witness statements bolster motions to dismiss or for acquittal if charges are unfounded.
• They provide essential fodder for cross-examination of the state’s witnesses at trial.

But perhaps most importantly: Thorough witness statements enable the defense to advise the client on potential exposure and guide them in plea decisions or trial strategy. Put simply: We need to know exactly what witnesses are saying as soon as possible.

Initial Challenges & Strategies in Philadelphia

When embarking on discovery in a Philly criminal case, we typically face an initial roadblock: The police paperwork often doesn’t contain full or signed witness statements. Rather, it might include brief summaries or fragments of accounts buried in the broader arrest report. This presents a few hurdles:

• Incomplete statements hamper investigation and early case analysis.
• They provide wiggle room for witnesses to change or embellish accounts later on.
• They undermine motions challenging probable cause.

Luckily, Philadelphia case law equips us with tools to overcome these roadblocks. Under the 1965 Pennsylvania Supreme Court ruling in Commonwealth v. Kontos, the defense is entitled to any written or oral statements made by witnesses to police or prosecutors. So if the police paperwork contains mere summaries, we can file a motion to compel complete and contemporaneous witness statements.

This involves submitting a discovery letter or motion requesting any and all statements made by witnesses leading up to or following the arrest. The motion should clearly state that fragmentary summaries are inadequate under Kontos and full verbatim accounts must be provided. While oral statements don’t need to be signed, they should be memorialized in writing by police as close to the actual statement as possible.

I typically file Kontos motions early – often at the first listing after receiving initial discovery. Compelling production of complete witness statements right out of the gate sets the tone that casual, incomplete discovery won’t fly. While prosecutors may drag their feet or resist at first, Kontos gives us legal teeth to insist on getting all witness accounts in a timely fashion.

Other Discovery Challenges in Philadelphia

Even once we obtain initial statements, discovery in Philly criminal cases often remains an ongoing battle. As the case progresses towards trial, we must vigilantly keep pressing for additional evidence and complete updates from all witnesses.

Why the need for constant vigilance? A few reasons:

• Witnesses sometimes continue speaking with police and prosecutors, generating new information.
• Plea deals or immunity agreements may influence a witness’ account or willingness to cooperate.
• Expert opinions can evolve based on emerging evidence.
• Police officers may file new reports or correct previous inaccuracies.

Luckily, we have tools to tackle these challenges as well. First and foremost is the “continuing duty to disclose” under Pa.R.Crim.Pro. 573(D). The rule expressly states that if either side discovers additional evidence or witnesses during the case, they must promptly notify opposing counsel.

I leverage 573(D) liberally by submitting periodic discovery letters requesting any new witness statements or police reports generated since the last disclosure. If we learn of new documents not shared with the defense, I’ll file motions to compel based on the continuing discovery duty.

In addition to letters and motions, I’ll also utilize oral discovery demands at status hearings. On the record, I’ll request that the ADA confirm they’ve produced all statements and reports from each witness and ask if any materials are outstanding. This puts them on the spot to acknowledge the duty to disclose new evidence as it emerges.

Barriers to Interviewing Police Witnesses

While getting complete discovery is critical, that alone doesn’t always reveal the weaknesses in the prosecution’s case. To best advise the client, the defense must also independently investigate by interviewing key witnesses. But in Philly, talking with police officers often proves uniquely challenging.

For one, Philadelphia police have notoriously resisted speaking with defense attorneys outside court proceedings. Unlike civilian witnesses, police witnesses are represented by the City Solicitor’s Office. They often defer to Solicitor guidance on whether to consent to defense interviews.

Unfortunately, the Solicitor’s longstanding general policy has been to deny informal interviews before trial or a court-ordered deposition. As a result, the defense’s access to police witnesses is severely curtailed in comparison to other jurisdictions.

However, the defense still has some options to overcome these barriers, including:

• File motions asking the court to order officers to appear for defense interviews. While burdensome, it forces the court to address the discovery limitations.
• Subpoena officers for depositions to question them under oath pre-trial. Useful but time-intensive and costly.
• File detailed written discovery requests regarding officers’ backgrounds, training, disciplinary history, etc. to aid investigation and possible impeachment.
• Thoroughly research an officer’s history through court records, misconduct databases, prior citizen complaints, etc. to equip cross-examination.

Creative Workarounds: Leveraging Hearings, Experts & Site Visits

Prying complete discovery from the Commonwealth and independently investigating the case through witness interviews are pillars for building an effective criminal defense in Philly. But even then, securing comprehensive first-hand accounts often remains an uphill battle here.

When all else fails, I lean on some additional creative workarounds to piece together the most complete evidentiary picture possible:

• Using court hearings to lock in testimony – At preliminary hearings and suppression hearings, question police witnesses to extract as much sworn testimony as possible early on.
• Consulting independent experts – Retaining outside experts to reconstruct events, analyze forensic evidence, or interpret medical records provides an impartial counter-balance to law enforcement’s typical monopoly on the narrative.
• Visiting the crime scene – There’s no substitute for seeing the actual site yourself to understand lighting, visibility, spatial relationships, etc. in context. Often reveals flaws in the state’s version of events.

Though burdensome at times, building a solid foundation in discovery and investigation remains the key to mounting an effective criminal defense in Philadelphia. Only by gathering all available witness statements, overcoming procedural barriers, and thinking creatively can we advise clients, defeat unfounded charges, and protect the innocent. The diligent defense attorney must utilize all ethical means to get the complete story – before trial if possible.

While securing comprehensive discovery is no walk in the park here, understanding Philadelphia’s unique rules, case law and systemic hurdles allows us to devise strategies to clear obstacles. With persistence and creativity, we can obtain the necessary building blocks to construct a winning defense strategy. The fight for justice starts with the earliest and most vigorous demands for evidence. Once discovery is complete, we’re equipped to force the Commonwealth to prove their case beyond a reasonable doubt – or expose the holes for the court to see plainly.