PRINTER'S NO. 335
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
328
Session of
2021
INTRODUCED BY HUGHES, KEARNEY, FONTANA, STREET AND MUTH,
MARCH 10, 2021
REFERRED TO JUDICIARY, MARCH 10, 2021
AN ACT
Amending Title 44 (Law and Justice) of the Pennsylvania
Consolidated Statutes, providing for investigations.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 44 of the Pennsylvania Consolidated
Statutes is amended by adding a chapter to read:
CHAPTER 83
INVESTIGATIONS
Subchapter
A. Recording of Interrogations
B. Eyewitness Identifications
SUBCHAPTER A
RECORDING OF INTERROGATIONS
Sec.
8301. Definitions.
8302. Recording.
8303. Applicability.
8304. Wiretap exception to recording.
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8305. Jury instructions.
8306. Handling and preservation of electronic recordings.
§ 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 Municipal Police Officers' Education and
Training Commission established under 53 Pa.C.S. Ch. 21 Subch. D
(relating to municipal police education and training).
"Custodial interrogation." An interview in which a question,
statement or other conduct is reasonably likely to elicit an
incriminating response and which occurs while the individual
interviewed is in custody.
"Custody." A circumstance under which the individual who is
interviewed by a law enforcement officer is physically deprived
of the individual's freedom in a significant way or 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 or audio 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.
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"Place of detention." A police station or other building
where a law enforcement agency operates, including a municipal
police department or county sheriff's department, and is owned
and operated for the purpose of detaining individuals in
connection with the suspected violation of a criminal offense.
The term does not include a courthouse.
"Statement." An oral, written, sign language or nonverbal
communication that takes place during a custodial interrogation.
§ 8302. Recording.
(a) Requirement.--A law enforcement agency shall make a
complete and contemporaneous electronic recording of each
custodial interrogation that occurs in a place of detention
relating to the investigation of the following offenses:
(1) An offense under 18 Pa.C.S. Ch. 25 (relating to
criminal homicide).
(2) An offense under 18 Pa.C.S. Ch. 31 (relating to
sexual offenses).
(3) An offense under 18 Pa.C.S. Ch. 37 (relating to
robbery).
(4) An offense classified as a felony under the laws of
this Commonwealth.
(5) An attempt under 18 Pa.C.S. § 901 (relating to
criminal attempt) or a conspiracy under 18 Pa.C.S. § 903
(relating to criminal conspiracy) to commit an offense
referred to under paragraph (1), (2), (3) or (4).
(b) Type.--A recording under subsection (a) shall be
complete only if the recording is an authentic, accurate,
uninterrupted and unaltered record of the interview, beginning
at or before the time the individual enters the place of
detention in which the law enforcement officer will conduct the
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custodial interrogation, and ending when the interview has
completely finished.
(c) Visual recording.--If a visual recording is made, each
camera shall be simultaneously focused on both the law
enforcement interviewer and the suspect.
§ 8303. Applicability.
(a) Exceptions.--Section 8302 (relating to recording) shall
not apply if the court finds each of the following:
(1) That a law enforcement officer made a
contemporaneous record of the reason for not making an
electronic recording of the statement or that it has been
proven by a preponderance of the evidence that it was not
feasible to make the record. The reason provided must be
consistent with paragraph (2).
(2) That it has been proven by a preponderance of the
evidence that at least one of the following circumstances
existed at the time of the custodial interrogation:
(i) The statement was made spontaneously and was not
made in response to a question.
(ii) The statement was made spontaneously in the
course of the routine intake processing of the
individual.
(iii) The law enforcement officer in good faith
failed to make an electronic recording of the custodial
interrogation because the officer inadvertently failed to
operate the recording equipment properly, or without the
officer's knowledge, the recording equipment
malfunctioned or stopped operating.
(iv) The custodial interrogation took place in
another jurisdiction and was conducted by an official of
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that jurisdiction in compliance with the law of that
jurisdiction.
(v) The law enforcement officers conducting or
contemporaneously observing the custodial interrogation
reasonably believed that the making of an electronic
recording would jeopardize the safety of the individual,
a law enforcement officer, a confidential informant or
another individual.
(vi) The law enforcement officer conducting or
contemporaneously observing the custodial interrogation
reasonably believed that the crime for which the
individual was subjected to custodial interrogation was
not among those listed under section 8302.
(vii) Exigent circumstances existed which prevented
or made infeasible the making of an electronic recording
of the custodial interrogation.
(viii) Before the custodial interrogation, the
individual to be interrogated indicated that the
individual would participate only if the custodial
interrogation was not electronically recorded and, if
feasible, the agreement to participate without recording
was electronically recorded.
(b) Exclusions.--Section 8302 shall not apply to a statement
if any of the following apply:
(1) The statement is offered as evidence solely to
impeach or rebut the testimony of the individual interrogated
and not as substantive evidence.
(2) The custodial interrogation takes place before a
grand jury or court of record.
§ 8304. Wiretap exception to recording.
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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
recording) may record the custodial interrogation without
consent or knowledge of the individual being held or
interrogated. Notwithstanding this section, a law enforcement
officer may obtain an individual's consent to recording or
inform the individual that the custodial interrogation will be
recorded.
§ 8305. Jury instructions.
(a) General rule.--If the prosecution offers an unrecorded
statement into evidence that was required to be electronically
recorded under this subchapter and the prosecution has not
established by a preponderance of the evidence that an exception
under section 8303 (relating to applicability) applies, the
trial 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.
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Instead you have been presented with the testimony as to
what took place, based upon the recollections of law
enforcement officers and the defendant.
No justification for their failure to make an electronic
recording has been presented to the court. Therefore, I
must give you the following special instructions about
your consideration of the evidence concerning that
interview.
Because the interview was not electronically recorded as
required by our law, you have not been provided the most
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 give 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) Additional instructions.--In addition to the
instructions outlined under subsection (a), the trial court may
provide any other instructions as may be requested by the
prosecution or defense.
§ 8306. Handling and preservation of electronic recordings.
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(a) Handling.--The law enforcement agency shall clearly
identify and catalog each electronic recording.
(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 appeal,
postconviction and habeas corpus proceedings by the
individual interrogated are concluded or the time within
which the proceeding 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.
SUBCHAPTER B
EYEWITNESS IDENTIFICATIONS
Sec.
8311. Scope of subchapter.
8312. Legislative purpose.
8313. Definitions.
8314. Eyewitness identification procedures.
8315. Jury instructions.
8316. Education and training program.
§ 8311. Scope of subchapter.
This subchapter relates to eyewitness identification
improvement.
§ 8312. Legislative purpose.
The purpose of this subchapter is to help solve crime,
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convict the guilty and protect the innocent in criminal
proceedings by improving procedures for eyewitness
identification of suspected perpetrators while ensuring that
police can promptly, safely and effectively investigate crimes.
§ 8313. 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:
"Administrator." The individual who conducts a live lineup
or photo lineup.
"Blind lineup." A lineup where either of the following
occurs:
(1) For a live lineup or photo lineup, the administrator
does not know the identity of the suspect.
(2) For a photo lineup in which the administrator knows
the identity of the suspect, the administrator does not know
which photograph the eyewitness is viewing at a given time.
"Eyewitness." An individual who observes another individual
at or near the scene of a criminal offense.
"Filler." An individual who is not suspected of an offense
and is included in an identification procedure.
"Identification procedure." An investigative procedure in
which a law enforcement official requests an eyewitness to
attempt to identify an individual who perpetrated a criminal
offense. The term includes a live lineup, a photo lineup or a
show-up.
"Law enforcement agency." A governmental 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
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law enforcement agency whose personal responsibilities include
enforcement of criminal laws or the investigation of suspected
criminal activity.
"Live lineup." An identification procedure in which several
individuals, including the suspect and fillers, are displayed to
an eyewitness for the purpose of determining whether the
eyewitness identifies the suspect as the perpetrator.
"Photo lineup." An identification procedure in which an
array of photographs, comprising a photograph of the suspect and
photographs of fillers, is displayed to an eyewitness either in
hard copy form or via computer for the purpose of determining
whether the eyewitness identifies the suspect as the
perpetrator.
"Show-up." An identification procedure in which an
eyewitness is presented with a suspect for the purpose of
determining whether the eyewitness identifies the individual as
the perpetrator.
"Suspect." The individual believed by law enforcement
investigators to be the possible perpetrator of the crime.
§ 8314. Eyewitness identification procedures.
(a) General rule.--An eyewitness identification procedure
conducted by a law enforcement agency must comply with this
section.
(b) Description of the perpetrator.--Except as provided
under subsection (h)(1), the eyewitness's description of the
perpetrator and the circumstances under which the eyewitness
observed the perpetrator, in the eyewitness's own words, shall
be obtained and documented immediately prior to a live lineup or
photo lineup, unless a description was recorded or otherwise
documented by law enforcement personnel before the commencement
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of the identification procedure. An eyewitness description shall
be preserved and provided as part of discovery.
(c) Blind lineup administration.--Subject to the exceptions
in this subsection, a blind lineup shall be conducted. If the
lineup is not blind, the administrator shall state in writing
the reason that a blind lineup was not used. A blind lineup
shall not be required to be conducted if any of the following
apply:
(1) A blind lineup is not practicable under the
circumstances. The administrator shall state in writing the
reasons that a blind lineup is not practicable.
(2) The law enforcement agency employs a single lineup
administrator who conducts each of its lineups, counsel for
the suspect is present at the lineup and the identification
procedure complies with subsections (d), (e), (f), (g), (i)
and (j).
(3) The law enforcement agency audiovisually records the
identification process and the identification procedure
complies with subsections (d), (e), (f), (g), (i) and (j).
(d) Prelineup instructions.--Prior to a live lineup or photo
lineup, the administrator shall apprise the eyewitness of all of
the following:
(1) That the perpetrator may or may not be among the
individuals presented in the identification procedure and
that the eyewitness shall not assume that the administrator
knows who the perpetrator is.
(2) That an individual's appearance can change based on
facial hair, weight or hair color.
(3) That it is just as important to eliminate innocent
individuals as it is to identify potential suspects.
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(4) That the eyewitness should not feel compelled to
make an identification.
(5) That the investigation will continue whether or not
an identification is made.
(6) That if an identification is made, the administrator
will ask the eyewitness to state, in the eyewitness's own
words, how confident the eyewitness is of the identification.
(e) Contact among eyewitnesses.--If more than one eyewitness
views a live lineup or photo lineup in a session, the
administrator may not permit the eyewitnesses to communicate
with each other until all identification procedures in the
session have been completed. Reasonable efforts shall be made so
that an eyewitness does not see or hear the identification or
nonidentification made by any other eyewitness.
(f) Lineup composition.--The administrator shall conduct the
lineup in a manner that:
(1) Only one suspect is included in a live lineup or
photo lineup.
(2) In a live lineup, the following apply:
(i) Each lineup participant is out of view of the
eyewitness prior to the identification procedure.
(ii) At least five fillers are used.
(iii) If a lineup participant is requested to speak,
move, gesture or change clothing, then all lineup
participants shall be asked to do the same.
(3) In a photo lineup, the following apply:
(i) The photograph of the suspect is placed in a
different position in the lineup for each eyewitness.
(ii) At least five fillers are used.
(iii) The photo lineup shall be preserved in the
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original form the photo lineup was shown to each
eyewitness.
(g) Comment after lineup.--An administrator or law
enforcement officer may not comment or otherwise indicate
whether an identification has identified a suspect.
(h) Show-ups.--The following apply to show-ups:
(1) If practicable and safe for the eyewitness and law
enforcement officers, the individual conducting the show-up
shall obtain the eyewitness's description of the perpetrator
and shall record or otherwise document the description before
commencing the show-up, which shall be preserved and provided
as part of discovery. If compliance with this paragraph is
not practicable or safe, the individual conducting the show-
up shall state in writing the reasons for the failure to
comply, which shall be provided as part of discovery.
(2) If practicable and safe for the eyewitness and the
law enforcement officers, the individual conducting the show
up shall apprise the eyewitness of each of the following
before commencing the show-up:
(i) That the perpetrator may or may not be the
individual presented to the eyewitness.
(ii) That the eyewitness should not feel compelled
to make an identification.
(iii) That the investigation will continue whether
or not an identification is made.
(iv) That if an identification is made, the
administrator will ask the eyewitness to state, in the
eyewitness's own words, how certain the eyewitness is of
the identification.
(3) When performing a show-up, law enforcement personnel
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shall take reasonable measures to preclude the eyewitness
from drawing inferences prejudicial to the suspect, including
the following:
(i) Refraining from suggesting through statements or
nonverbal conduct that the suspect is or may be the
perpetrator of the crime.
(ii) If practicable and safe for the eyewitness and
the law enforcement officers, removing handcuffs from the
suspect and having the show-up take place at some
distance from a squad car.
(4) If there are multiple eyewitnesses to a criminal
offense under investigation, police shall make reasonable
efforts to prevent an eyewitness from seeing or hearing the
identification or nonidentification made by any other
eyewitness.
(5) If an eyewitness is requested to make an
identification of more than one suspect at a show-up, the
suspects shall be separated and the individual conducting the
show-up shall perform a separate show-up for each suspect
when practicable and safe for the eyewitness and the law
enforcement officers.
(i) Confidence statement.--If an eyewitness identifies an
individual as the perpetrator at an identification procedure,
the administrator shall immediately request a statement from the
eyewitness, in the eyewitness's own words, as to the
eyewitness's confidence level that the individual identified is
the perpetrator. The eyewitness must not be permitted to see or
hear any information concerning the identified individual until
after the administrator obtains the eyewitness's confidence
statement.
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(j) Record.--The administrator shall make an audiovisual or
audio recording of the identification procedure. In addition to
the recording, the administrator shall document and include each
identification and any nonidentification result obtained during
the identification procedure as well as any confidence
statement, which shall be preserved and provided as part of
discovery.
§ 8315. Jury instructions.
(a) Requirements of subchapter.--At the request of either
party, the trial court may instruct the jury as to the
requirements of this subchapter and how compliance or failure to
comply with the requirements may affect the reliability of the
identification.
(b) Failure to comply with subchapter.--If sufficient
evidence of failure to comply with this subchapter is presented
at trial, the trial court shall instruct the jury that the jury
may consider the evidence of noncompliance as a reason to view
the identification evidence with caution.
§ 8316. Education and training program.
(a) Establishment.--The Pennsylvania State Police and the
Municipal Police Officers' Education and Training Commission, in
conjunction with the Pennsylvania District Attorneys
Association, the Pennsylvania Innocence Project, the
Pennsylvania Association of Criminal Defense Lawyers, the Public
Defender Association of Pennsylvania and the Juvenile Defenders
Association of Pennsylvania, shall establish a comprehensive
education and training program on eyewitness identification,
including, but not limited to, the procedures under section 8314
(relating to eyewitness identification procedures). As
scientific findings regarding variables that affect a witness's
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vision and memory, practices for minimizing contamination and
effective eyewitness identification protocols change and
advance, the education and training shall be updated
accordingly.
(b) Administration.--The Pennsylvania State Police and the
Municipal Police Officers' Education and Training Commission
shall administer to law enforcement officers and recruits the
education and training program established under subsection (a).
(c) Requirement.--Each law enforcement agency shall require
each law enforcement officer who is employed by the law
enforcement agency and who performs eyewitness identification
procedures to complete the education and training program
established under subsection (a).
Section 2. This act shall take effect in 60 days.
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