PRINTER'S NO. 2289
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2005
Session of
2021
INTRODUCED BY HANBIDGE, KINSEY, SANCHEZ, SCHLOSSBERG, HILL-
EVANS, A. DAVIS, CIRESI AND N. NELSON, OCTOBER 21, 2021
REFERRED TO COMMITTEE ON JUDICIARY, OCTOBER 21, 2021
AN ACT
Amending Titles 18 (Crimes and Offenses) and 44 (Law and
Justice) of the Pennsylvania Consolidated Statutes, in
wiretapping and electronic surveillance, further providing
for exceptions to prohibition of interception and disclosure
of communications; and providing for investigations.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 5704 of Title 18 of the Pennsylvania
Consolidated Statutes is amended by adding a paragraph to read:
§ 5704. Exceptions to prohibition of interception and
disclosure of communications.
It shall not be unlawful and no prior court approval shall be
required under this chapter for:
* * *
(19) A law enforcement officer to engage in a custodial
interrogation in accordance with 44 Pa.C.S. Ch. 83 Subch. A
(relating to recording of interrogations).
Section 2. Title 44 is amended by adding a part to read:
PART V
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PROCEDURES
Chapter
83. Investigations
CHAPTER 83
INVESTIGATIONS
Subchapter
A. Recording of Interrogations
B. (Reserved)
SUBCHAPTER A
RECORDING OF INTERROGATIONS
Sec.
8301. Definitions.
8302. Electronic recording.
8303. Wiretap exception to electronic recording.
8304. Jury instructions.
8305. Handling and preservation of electronic recordings.
8306. Grant program.
8307. Appropriations.
8308. Administrative costs.
8309. Reports.
§ 8301. Definitions.
The following words and phrases when used in this subchapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Commission." The Pennsylvania Commission on Crime and
Delinquency.
"Custodial interrogation." An interview with an individual
in which a question, statement or other conduct is reasonably
likely to elicit an incriminating response and occurs while the
individual interviewed is in custody.
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"Custody." A state of affairs in which an individual who is
interviewed by a law enforcement officer is:
(1) physically deprived of freedom in any significant
way; or
(2) is placed in a situation in which the individual
reasonably believes that the individual's freedom of action
or movement is restricted.
" Electronic recording." An audiovisual recording of a
statement that is authentic, accurate and unaltered.
"Interview." A conversation between a law enforcement
officer and another individual that takes place in the course of
a criminal investigation.
"Law enforcement agency." A government entity whose
responsibilities include enforcement of criminal laws or the
investigation of suspected criminal activity.
"Law enforcement officer." An officer or other employee of a
law enforcement agency whose personal responsibilities include
enforcement of criminal laws or the investigation of suspected
criminal activity.
"Program." The Custodial Interrogation Recording Grant
Program established under section 8306(a) (relating to grant
program).
"Statement." An oral, written, sign language or nonverbal
communication that takes place during a custodial interrogation.
§ 8302. Electronic recording.
(a) Requirement.--A law enforcement agency shall make a
complete and contemporaneous electronic recording of each
custodial interrogation relating to the investigation of all
offenses, including any attempt, solicitation or conspiracy to
commit an offense under 18 Pa.C.S. § 901 (relating to criminal
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attempt), 902 (relating to criminal solicitation) or 903
(relating to criminal conspiracy).
(b) Completeness.--An electronic recording under subsection
(a) shall be complete only if the electronic recording is an
authentic, accurate, uninterrupted and unaltered record of the
custodial interrogation, beginning at or before the time that
the individual enters the place of detention in which the law
enforcement officer will conduct the custodial interrogation,
and ending when the interview with the individual has completely
finished.
(c) Visual recording.--Each camera that records visuals of a
custodial interrogation shall be simultaneously focused on both
the law enforcement officer conducting the interview and the
suspect.
(d) Applicability.--
(1) This section does not apply if the court finds all
of the following:
(i) Th e statement by the individual:
(A) is admissible as evidence; and
(B) is reliable and was made voluntarily, as
proven by a preponderance of the evidence.
(ii) Either of the following, consistent with
subparagraph (iii):
(A) The law enforcement officer who conducted
the custodial interrogation made a contemporaneous
record of the reason for not making an electronic
recording of the statement.
(B) It was not feasible for the law enforcement
officer who conducted the custodial interrogation to
make a contemporaneous record of the reason for not
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making an electronic recording of the statement, as
proven by a preponderance of the evidence.
(iii) As proven by a preponderance of the evidence,
one or more of the following circumstances existed at the
time of the custodial interrogation:
(A) The statement was made spontaneously and was
not made in response to a question.
(B) The statement was made spontaneously in the
course of the routine intake processing of the
individual.
(C) The law enforcement officer in good faith
failed to make an electronic recording of the
custodial interrogation because the law enforcement
officer inadvertently failed to operate the recording
equipment properly or, without the law enforcement
officer's knowledge, the recording equipment
malfunctioned or stopped operating.
(D) The custodial interrogation took place in
another jurisdiction and was conducted by an official
of that jurisdiction in compliance with the law of
that jurisdiction.
(E) The law enforcement officer conducting or
contemporaneously observing the custodial
interrogation reasonably believed that the making of
an electronic recording would jeopardize the safety
of a confidential informant.
(F) Exigent circumstances existed which
prevented or made infeasible the making of an
electronic recording of the custodial interrogation.
(G) Before the custodial interrogation:
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(I) the individual to be interrogated
indicated that the individual would participate
only if the custodial interrogation would not be
electronically recorded; and
(II) if feasible, the agreement to
participate without electronic recording was
electronically recorded.
(2) This section does not apply to a statement if any of
the following apply:
(i) The statement is offered as evidence solely to
impeach or rebut the testimony of the individual
interrogated and not as substantive evidence.
(ii) The law enforcement agency has demonstrated to
the commission that:
(A) the equipment and training required to
fulfill the requirements of this section would create
a financial hardship for the law enforcement agency;
and
(B) the law enforcement agency is currently
awaiting the distribution of program grant money
under section 8306 (relating to grant program).
§ 8303. Wiretap exception to electronic recording.
(a) Authorization.--Notwithstanding 18 Pa.C.S. Ch. 57
(relating to wiretapping and electronic surveillance), a law
enforcement officer engaged in custodial interrogation under
section 8302 (relating to electronic recording) may
electronically record the custodial interrogation without
consent or knowledge of the individual being held or
interrogated.
(b) Permissible actions.--Notwithstanding subsection (a), a
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law enforcement officer may obtain an individual's consent to
recording or inform the individual that the custodial
interrogation will be electronically recorded.
§ 8304. Jury instructions.
(a) Cautionary instructions.--I f the prosecution offers an
unrecorded statement into evidence that was required to be
elec tronically recorded under this subchapter and the
prosecution has not established by a preponderance of the
evidence that an exception under section 8302(d) (relating to
electronic recording) applies, the court shall provide the jury
with the following cautionary instructions with any changes
necessary to be consistent with the evidence:
"The law of this Commonwealth required that the interview
of the defendant by law enforcement officers, which took
place on {insert date} at {insert place}, was to be
electronically recorded from beginning to end. The purpose of
this requirement is to ensure that you jurors will have
before you a complete, unaltered and precise record of the
circumstances under which the interview was conducted and
what was said and done by each of the individuals present.
In this case, the interviewing law enforcement officers
failed to comply with that law by not making an electronic
recording of the interview of the defendant. Instead, you
have been presented with the testimony as to what took place,
based upon the recollections of law enforcement officers and
the defendant.
N o justification for their failure to make an electronic
recording has been presented to the court.
Because the interview was not electronically recorded as
required by our law, you have not been provided the most
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reliable evidence as to what was said and done by the
participants. You cannot hear the exact words used by the
participants, nor the tone or the inflection of their voices.
As you go about determining what occurred during the
interview, you should take the testimony about the statement
with caution and special attention to whether you are
satisfied that what was said and done has been accurately
reported by the participants, including testimony by law
enforcement witnesses as to the statements attributed to the
defendant.
Accordingly, because law enforcement officers failed to
make an electronic recording, you may take this into account
when determining what weight to attribute to the statements
attributed to the defendant and the accuracy and credibility
of the testimony of the witnesses."
(b) Unrecorded statement presented to impeach or rebut
testimony.--If the prosecution offers an unrecorded statement
into evidence solely to impeach or rebut the testimony of the
individual interrogated and not as substantive evidence subject
to section 8302(d)(2)(i), the court shall:
(1) provide the jury with instructions as appropriate to
explain that the statement is exempt from the electronic
recording requirements under section 8302; and
(2) clarify that the statement is offered into evidence
to impeach or rebut the testimony of the individual
interrogated and not as substantive evidence.
(c) Additional instructions.--In addition to the
instructions outlined under subsection (a), the court may
provide the jury with any other instructions as appropriate if
requested by the prosecution or defense.
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§ 8305. Handling and preservation of electronic recordings.
(a) Identification and catalog.--A law enforcement agency
shall clearly identify and catalog all electronic recordings of
the law enforcement agency.
(b) Preservation.--
(1) If a juvenile or criminal proceeding is brought
against an individual interrogated in an electronically
recorded custodial interrogation, law enforcement personnel
shall preserve the electronic recording until all appeals,
postconviction and habeas corpus proceedings by the
individual are concluded or the period within which those
proceedings must be brought has expired.
(2) If a juvenile or criminal proceeding is not brought
against an individual interrogated in an electronically
recorded custodial interrogation, law enforcement personnel
shall preserve the electronic recording until all applicable
Federal and State statutes of limitations bar prosecution of
the individual.
§ 8306. Grant program.
(a) E stablishment.--The Custodial Interrogation Recording
Grant Program is established within the commission.
(b) Purpose.--The purpose of the program is to award annual
grants to each law enforcement agency for which the acquisition
of equipment or the training necessary to utilize the equipment
to fulfill the requirements of section 8302 (relating to
electronic recording) or 8305 (relating to handling and
preservation of electronic recordings) would create a financial
hardship for the law enforcement agency.
(c) Administration.--The commission shall administer the
program and may promulgate rules and regulations as necessary to
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administer the program.
(d) Public notice.--The commission shall provide information
regarding the availability and award of program grant money,
including the application form under subsection (e), on the
publicly accessible Internet website of the commission.
(e) Application forms.--The commission shall develop an
annual program grant application form for any law enforcement
agency that seeks program grant money. At a minimum, the form
shall contain the following information:
(1) T he name, address and contact information of the law
enforcement agency.
(2) The amount of program grant money requested.
(3) The proposed use for the program grant money
requested, including a clearly defined breakdown of the costs
that the program grant money would cover.
(4) Evidence that the acquisition of equipment or the
training necessary to utilize the equipment to fulfill the
requirements of section 8302 or 8305 would create a financial
hardship for the law enforcement agency.
(5) Any other information that the commission deems
necessary and appropriate.
(f) Award of program grant money.--
(1) After review of the information provided under each
applicant's submitted application form, the commission shall
determine whether to award program grant money to the
applicant and, if so, the amount of the program grant money
awarded.
(2) In awarding program grant money, the commission
shall:
(i) Give preference to applicants whose grant
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proposals demonstrate the greatest financial need.
(ii) Consider the average number of custodial
interrogations that the law enforcement agency handles on
a yearly basis.
§ 8307. Appropriations.
I n addition to any amounts otherwise authorized to be
appropriated or made available to the commission, the sum of
$1,000,000 is hereby appropriated for each of the three fiscal
years following the effective date of this section to provide
program grants.
§ 8308. Administrative costs.
The commission may use up to 8% of the money appropriated for
program grants each year for the costs of administering the
program, which may include the costs relating to the employment
of personnel, providing technical assistance to grantees, the
reimbursement of travel expenses and evaluating the financial
needs of program applicants.
§ 8309. Reports.
At the end of each fiscal year following the appropriation of
program grant money, the commission shall prepare and submit a
report to the General Assembly regarding the distribution of
program grant money to law enforcement agencies, including:
(1) The total amount of program grant money awarded.
(2) The amount of program grant money awarded to each
law enforcement agency.
(3) The p roposed uses for the program grant money
awarded.
SUBCHAPTER B
(Reserved)
Section 3. This act shall take effect in one year.
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