Rule 14. Pretrial Discovery from the Prosecution

(a) The Prosecutor's Obligations.

(1) The Prosecution Team. For the purposes of this rule, the prosecution team includes all persons under the prosecuting office's direction and control, or persons who have participated in investigating or evaluating the case and either regularly report to the prosecuting office or have done so in the case. The prosecution team includes but is not limited to:

(A) Personnel of police departments or other law enforcement agencies who were or are involved in the investigation of the case, before or after charges were issued, or were or are involved in the prosecution of the case;

(B) Personnel of other governmental agencies who, in conjunction or collaboration with the prosecutor, were or are involved in the investigation or prosecution of the case;

(C) Forensic analysts, crime laboratory personnel, and criminalists employed or retained by state or local government who were or are involved in the investigation or prosecution of the case;

(D) Victim witness advocates and investigators employed by the prosecuting office; and

(E) Members of joint state and federal law enforcement task forces who were or are involved in the investigation or prosecution of the case.

(2) The Prosecutor's Duties to Inform and Inquire, Collect and Disclose, Preserve and Notify, and Record.

(A) The prosecutor has a duty in each case to inform each member of the prosecution team whom the prosecutor has reason to believe may be in possession of items or information subject to this rule of the discovery and preservation obligations required by this rule, and to inquire of each such person as to the existence of any such items or information.

(B) The prosecutor has a duty in each case to collect and to disclose to the defense all items and information required by this rule that are in the possession, custody, or control of the prosecutor, the prosecuting office, or any member of the prosecution team.

(C) When the prosecutor learns of items or information subject to disclosure which cannot be promptly copied or made available for inspection by the defense, the prosecutor has a duty to promptly notify the defense of the existence, and if known the location, of those items or information, and to instruct an appropriate member of the prosecution team to preserve those items or information until they can be disclosed.

(D) When the prosecutor learns of items subject to disclosure that have been destroyed, lost, altered, or which have otherwise become unavailable, or items or information subject to disclosure that a member of the team will not provide the prosecutor, the prosecutor has a duty to promptly notify the defense of the destruction, loss, alteration, or unavailability of the items or the refusal to provide the items or information.

(E) The judge may inquire of the prosecutor what actions were taken to achieve compliance with this rule.

(b) Materials Subject to Automatic Discovery.

(1) Investigative Materials. The prosecutor shall disclose to the defense, and permit the defense to discover, inspect, and copy, each of the following items and information, provided it is relevant to the case and in the possession, custody, or control of the prosecutor, the prosecuting office, or any member of the prosecution team:

(A) Any written or recorded statements, and the substance of any oral statements, made by the defendant or a co-defendant.

(B) The grand jury minutes, and the written or recorded statements of a person who has testified before a grand jury.

(C) The names, addresses, dates of birth, and known contact information of the Commonwealth's prospective witnesses other than law enforcement witnesses.

(D) Written or recorded statements of persons the prosecutor may call as witnesses, and notes of interviews by law enforcement with persons the prosecutor may call as witnesses, unless contained within a disclosed statement or report.

(E) The names, business telephone numbers, business email addresses, and business addresses of prospective law enforcement witnesses.

(F) Intended expert opinion evidence, other than evidence that pertains to the defendant's criminal responsibility and is subject to Rule 14.4. Such discovery shall include the identity, current curriculum vitae, and list of publications of each intended expert witness, and all reports prepared by the expert that pertain to the case.

(G) All photographs, video and audio recordings, or other tangible objects, all police or investigator's reports, and all intended exhibits.

(H) Reports of physical examinations of any person or of scientific tests or experiments.

(I) A summary of identification procedures, and all written, recorded, or oral statements made in the presence of or by an identifying witness that are relevant to the issue of identity or to the fairness or accuracy of the identification procedures.

(2) Items and Information Favorable to the Defense.

(A) Scope. The prosecutor shall disclose to the defense, and permit the defense to discover, inspect, and copy, all items and information favorable to the defense in the possession, custody, or control of the prosecutor, the prosecuting office, or any member of the prosecution team. Items and information subject to this section must be disclosed without regard to whether the prosecutor considers the items or information credible, reliable, or admissible and without regard to whether any such information has been reduced to tangible form. The disclosure of any unwritten or intangible information shall be memorialized as soon as there is a reasonable opportunity, manner, and means to do so.

(B) Definition. Items and information favorable to the defense are items or information that tend to:

(i) Cast doubt on an aspect of guilt as to an element of any count of a charged or lesser included offense;

(ii) Cast doubt on the credibility or accuracy of any evidence, including identification or scientific evidence, the prosecutor may introduce;

(iii) Cast doubt on the credibility of the testimony of any witness the prosecutor may call;

(iv) Cast doubt on the admissibility of any evidence or testimony the prosecutor may introduce;

(v) Support the suppression or exclusion of any evidence or testimony the prosecutor may introduce;

(vi) Mitigate the charged offense or offenses or any lesser included offense or offenses, diminish the defendant's culpability, or mitigate the sentence;

(vii) Establish a defense theory or recognized affirmative defense or exemption to the charged offense or offenses or any lesser included offense or offenses, regardless of whether the defendant has presented such theory or raised such affirmative defense or exemption; or

(viii) Corroborate the defense version of facts or call into question a material aspect of the prosecution's version of facts, even if this aspect is not an element of the prosecution's case.

(C) Examples. Items or information favorable to the defense include but are not limited to:

(i) With respect to any witness the prosecutor may call:

(a) Any promise, reward, or inducement sought, requested by, offered to, or given to such witness;

(b) Any criminal record of such witness not contained in the court activity record provided pursuant to Rule 14.2(b);

(c) Any criminal cases pending against such witness at any relevant time, whether brought by the prosecuting office or by a prosecuting office in any other jurisdiction;

(d) Any written statement or oral statement of such witness that is inconsistent with any written statement or oral statement known to the prosecutor by the witness, that recants any written statement or oral statement known to the prosecutor by the witness, or that omits, adds, varies, or supplements any written statement or oral statement known to the prosecutor by the witness;

(e) Any written statement or oral statement of such witness that is inconsistent with any written statement or oral statement known to the prosecutor made by any other witness the prosecutor may call;

(f) Any information reflecting bias or prejudice against the defendant by such witness or which otherwise reflects bias or prejudice against any class or group of which the defendant is a member;

(g) Any crime, charged or uncharged, committed by such witness, if known to the prosecutor, prosecuting office, or any member of the prosecution team;

(h) Any information about such witness contained in any database or list of information about law enforcement misconduct maintained by or available to the prosecuting office; and

(i) Any information about any mental or physical impairment or condition of such witness that may cast doubt on such witness's ability to testify truthfully and accurately concerning any relevant event.

(ii) With respect to any percipient witness, without regard to whether the prosecutor may call such witness:

(a) The failure of the percipient witness to make an identification of a defendant, if any identification procedure has been conducted with such a witness with respect to the crime at issue;

(b) Any inconsistent written statement or oral statement of the percipient witness regarding the alleged incident or the conduct of the defendant; and

(c) Any written statement or oral statement of the percipient witness that is inconsistent with written statements or oral statements about the alleged incident made by other witnesses.

(iii) With respect to any expert witness, other than one pertaining to the defendant's criminal responsibility subject to Rule 14.4, the prosecutor may call:

(a) Descriptions of any examinations, tests, or experiments performed by the expert in connection with the case that were inconclusive, whose results were inconsistent with those of any examinations, tests, or experiments included in the expert's report, or whose results were inconsistent with any conclusion or opinion offered by the expert; and

(b) Descriptions of negative outcomes of proficiency testing or audits of the expert witness or of any testing or laboratory facility used by the expert for tests or experimentation.

(iv) With respect to any person the prosecutor does not anticipate calling:

(a) Any written statement or oral statement of such person, including an expert, pertaining to the case that is inconsistent with any written statement or oral statement known to the prosecutor made by a witness the prosecutor may call.

(v) Items or information that tend to:

(a) Support the proposition that another person committed the crime or had the motive, intent, or opportunity to commit it;

(b) Establish deficiencies or lapses in the investigation of the case or the failure of any expert witness or member of the prosecution team to follow established protocols, policies, or professional standards;

(c) Call into doubt the authenticity of any evidence the prosecutor may introduce, or the reliability or validity of any expert testimony the prosecutor may introduce; and

(d) Suggest that any bias or prejudice against any class or group of which the defendant is a member played any role in the investigation or prosecution of the case.

(3) Statement Definitions.

(A) The term "written statement," as used in this rule, means:

(i) a writing made, signed, or otherwise adopted by a person having percipient knowledge of relevant facts and which contains such facts, other than drafts or notes that have been incorporated into a subsequent draft or final report; or

(ii) a written, stenographic, mechanical, electrical, or other recording, or transcription thereof, which is a substantially verbatim recital of an oral declaration, except that a computer assisted real time translation, or its functional equivalent, made to assist a deaf or hearing-impaired person, that is not transcribed or permanently saved in electronic form, shall not be considered a statement.

(B) The term "oral statement," as used in this rule, means any communication, by speech or nonverbal conduct intended as an assertion, of a person having percipient knowledge of relevant facts and which contains such facts that is not a written statement.

(C) If information subject to disclosure exists in statements of multiple forms, including written and oral statements, the entirety of the substance of the information must be fully and completely disclosed, even when such disclosure requires providing written documents and separately disclosing the substance of any unwritten oral statement. The disclosure of any unwritten oral statements should be memorialized as soon as there is a reasonable opportunity, manner, and means to do so.

(c) Timing of Discovery. Except as otherwise ordered by the court, the prosecutor shall provide the discovery required by Rule 14(b) at arraignment to the extent that the discovery is in the possession of the prosecutor. The prosecutor shall provide the discovery required by Rule 14(b) then available to the prosecution team by the first pretrial conference.

(d) Continuing of Duty. If the prosecution team subsequently obtains possession of items or information subject to disclosure under Rule 14(b), the prosecutor shall promptly disclose to or notify the defense of its acquisition of such additional items or information in the same manner as required for initial discovery.