PRINTER'S NO. 2985
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2231
Session of
2024
INTRODUCED BY BRIGGS, KENYATTA, HILL-EVANS, KINSEY, DONAHUE,
SANCHEZ, JAMES, McNEILL, SHUSTERMAN AND DALEY, APRIL 24, 2024
REFERRED TO COMMITTEE ON JUDICIARY, APRIL 24, 2024
AN ACT
Amending Title 44 (Law and Justice) of the Pennsylvania
Consolidated Statutes, in preliminary provisions, adopting
the Uniform Electronic Recordation of Custodial
Interrogations Act; requiring recordings of interrogations;
and imposing functions on the Attorney General.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Part I of Title 44 of the Pennsylvania
Consolidated Statutes is amended by adding a chapter to read:
CHAPTER 11
UNIFORM ELECTRONIC RECORDATION OF
CUSTODIAL INTERROGATIONS ACT
Sec.
1101. Short title of chapter.
1102. Definitions.
1103. Electronic recording requirement.
1104. Notice and consent not required.
1105. Exception for exigent circumstances.
1106. Exception for individual's refusal to be recorded
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electronically.
1107. Exception for interrogation conducted by other
jurisdiction.
1108. Exception based on belief recording not required.
1109. Exception for safety of individual or protection of
identity.
1110. Exception for equipment malfunction.
1111. Burden of persuasion.
1112. Notice of intent to introduce unrecorded statement.
1113. Procedural remedies.
1114. Handling and preserving electronic recording.
1115. Regulations relating to electronic recording.
1116. Limitation of liability.
1117. Self-authentication.
1118. (Reserved).
1119. Uniformity of application and construction.
1120. Relation to Electronic Signatures in Global and National
Commerce Act.
§ 1101. Short title of chapter.
This chapter shall be known and may be cited as the Uniform
Electronic Recordation of Custodial Interrogations Act.
§ 1102. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Child." As defined in 42 Pa.C.S. § 6302 (relating to
definitions).
"Crime of violence." As defined in 42 Pa.C.S. § 9714(g)
(relating to sentences for second and subsequent offenses). The
term includes a violent delinquent act.
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"Custodial interrogation." Questioning or other conduct by a
law enforcement officer which:
(1) is reasonably likely to elicit an incriminating
response from an individual; and
(2) occurs when a reasonable individual in the same
circumstances would consider that the individual is in
custody.
The term includes giving a required warning, advice of rights of
the individual being questioned and waiver of rights by the
individual.
"Electronic recording." A video recording, with audio,
which accurately and completely records a custodial
interrogation.
"Law enforcement agency." A governmental entity or person
authorized by a governmental entity or state law to enforce
criminal laws or investigate suspected criminal activity. The
term includes a nongovernmental entity which has been delegated
the authority to enforce criminal laws or investigate suspected
criminal activity. The term does not include a law enforcement
officer.
"Law enforcement officer." Any of the following:
(1) An individual who is employed by a law enforcement
agency and whose responsibilities include enforcing criminal
laws or investigating suspected criminal activity.
(2) An individual acting at the request or direction of
an individual described in paragraph (1).
"Person." Any of the following:
(1) An individual, corporation, business trust,
statutory trust, estate, trust, partnership, limited
liability company, association, joint venture or public
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corporation.
(2) A government or governmental subdivision, agency or
instrumentality.
(3) Any other legal or commercial entity.
"Record electronically." To make an electronic recording.
"State." A state of the United States, the District of
Columbia, Puerto Rico, the United States Virgin Islands or a
territory or insular possession subject to the jurisdiction of
the United States.
"Statement." A communication, whether oral, written,
electronic or nonverbal.
"Violent delinquent act." An offense by a child which, if
committed by an adult, would constitute a crime of violence.
§ 1103. Electronic recording requirement.
(a) Requirement.--
(1) Except as specified in paragraph (2) or subsection
(e), a custodial interrogation related to a crime of violence
must be recorded electronically in its entirety.
(2) Paragraph (1) does not apply as described in
section:
(i) 1105 (relating to exception for exigent
circumstances);
(ii) 1106 (relating to exception for individual's
refusal to be recorded electronically);
(iii) 1107 (relating to exception for interrogation
conducted by other jurisdiction);
(iv) 1108 (relating to exception based on belief
recording not required);
(v) 1109 (relating to exception for safety of
individual or protection of identity); or
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(vi) 1110 (relating to exception for equipment
malfunction).
(b) Justification report.--
(1) This subsection applies if a law enforcement
officer:
(i) conducts a custodial interrogation to which
subsection (a) applies;
(ii) relies upon an exception under subsection (a)
(2) or (e); and
(iii) does not electronically record the custodial
interrogation in its entirety.
(2) If this subsection applies, the law enforcement
officer shall prepare a written or electronic report:
(i) explaining the reason for not recording the
custodial interrogation; and
(ii) summarizing the custodial interrogation process
and the statements of the individual subject to the
custodial interrogation.
(c) Report timing.--A law enforcement officer shall prepare
the report under subsection (b) as soon as practicable after
completing the interrogation.
(d) (Reserved).
(e) Spontaneous and routine statements.--This section does
not apply to:
(1) a spontaneous statement made outside the course of a
custodial interrogation; or
(2) a statement made in response to a question asked
routinely during the processing of the arrest of an
individual.
§ 1104. Notice and consent not required.
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Notwithstanding 18 Pa.C.S. Ch. 57 Subch. B (relating to wire,
electronic or oral communication), a law enforcement officer
conducting a custodial interrogation is not required to obtain
consent to electronic recording from the individual being
interrogated. This chapter does not permit a law enforcement
officer or a law enforcement agency to record a private
communication between an individual and the individual's lawyer.
§ 1105. Exception for exigent circumstances.
Section 1103 (relating to electronic recording requirement)
does not apply if electronic recording is not feasible because
of exigent circumstances. The law enforcement officer conducting
the interrogation shall record electronically an explanation of
the exigent circumstances before conducting the interrogation,
if feasible, or as soon as practicable after the interrogation
is completed.
§ 1106. Exception for individual's refusal to be recorded
electronically.
(a) Refusal to participate.--Section 1103 (relating to
electronic recording requirement) does not apply if the
individual to be interrogated indicates that the individual will
not participate in the interrogation if the interrogation is
recorded electronically. If feasible, the agreement to
participate without recording must be recorded electronically.
(b) Refusal to continue.--If, during a custodial
interrogation under section 1103, the individual being
interrogated indicates that the individual will not participate
in further interrogation unless electronic recording ceases, the
remainder of the custodial interrogation need not be recorded
electronically. If feasible, the individual's agreement to
participate without further recording must be recorded
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electronically.
(c) Encouraging refusal.--A law enforcement officer, with
intent to avoid the requirement of electronic recording in
section 1103, may not encourage an individual to request that a
recording not be made.
§ 1107. Exception for interrogation conducted by other
jurisdiction.
If a custodial interrogation occurs in another state in
compliance with that state's law or is conducted by a Federal
law enforcement agency in compliance with Federal law, the
interrogation need not be recorded electronically unless the
interrogation is conducted with intent to avoid the requirement
of electronic recording in section 1103 (relating to electronic
recording requirement).
§ 1108. Exception based on belief recording not required.
(a) Initial belief.--Section 1103 (relating to electronic
recording requirement) does not apply if the interrogation
occurs when no law enforcement officer conducting the
interrogation has knowledge of facts and circumstances that
would lead an officer reasonably to believe that the individual
being interrogated may have committed an act for which section
1103 requires that a custodial interrogation be recorded
electronically.
(b) Additional factors.--If, during a custodial
interrogation under subsection (a), the individual being
interrogated reveals facts and circumstances giving a law
enforcement officer conducting the interrogation reason to
believe that an act has been committed for which section 1103
requires that a custodial interrogation be recorded
electronically, continued custodial interrogation concerning
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that act must be recorded electronically, if feasible.
§ 1109. Exception for safety of individual or protection of
identity.
Section 1103 (relating to electronic recording requirement)
does not apply if a law enforcement officer conducting the
interrogation or the officer's superior reasonably believes that
electronic recording would disclose the identity of a
confidential informant or jeopardize the safety of an officer,
the individual being interrogated or another individual. If
feasible and consistent with the safety of a confidential
informant, an explanation of the basis for the belief that
electronic recording would disclose the informant's identity
must be recorded electronically at the time of the
interrogation. If contemporaneous recording of the basis for the
belief is not feasible, the recording must be made as soon as
practicable after the interrogation is completed.
§ 1110. Exception for equipment malfunction.
(a) General malfunction.--Section 1103 (relating to
electronic recording requirement) does not apply to the extent
that recording is not feasible because:
(1) the available electronic recording equipment fails,
despite reasonable maintenance of the equipment; and
(2) timely repair or replacement is not feasible.
(b) Video only.--Recording may be by video alone if audio
recording is not feasible under subsection (a).
§ 1111. Burden of persuasion.
If the prosecution relies on an exception under section
1103(a)(2) (relating to electronic recording requirement) to
justify a failure to record electronically a custodial
interrogation, the prosecution must prove by a preponderance of
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the evidence that the exception applies.
§ 1112. Notice of intent to introduce unrecorded statement.
If the prosecution intends to introduce in its case-in-chief
a statement made during a custodial interrogation subject to
section 1103 (relating to electronic recording requirement)
which was not recorded electronically, the prosecution, not
later than 14 days after arraignment, must serve the defendant
with written notice of the prosecution's intent and of any
exception on which the prosecution intends to rely.
§ 1113. Procedural remedies.
(a) Admissibility.--Unless the court finds that an exception
under section 1103(a)(2) (relating to electronic recording
requirement) applies, the court shall consider the failure to
record electronically all or part of a custodial interrogation
subject to section 1103 in determining whether a statement made
during the interrogation is admissible, including whether it was
voluntarily made and is reliable.
(b) Instruction.--If the court admits into evidence a
statement made during a custodial interrogation that was not
recorded electronically in compliance with section 1103, the
court, on request of the defendant, shall give a cautionary
instruction to the jury.
§ 1114. Handling and preserving electronic recording.
Each law enforcement agency in this Commonwealth shall
establish and enforce procedures to ensure that the electronic
recording of all or part of a custodial interrogation is
identified, accessible and preserved as required by Pa.R.E. Art.
X (relating to contents of writings, recordings, and
photographs). The procedures shall be consistent with applicable
provisions contained in the regulations under section 1115
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(relating to regulations relating to electronic recording). The
Office of Attorney General shall monitor and enforce compliance
with this section.
§ 1115. Regulations relating to electronic recording.
(a) Adoption and enforcement.--The Office of Attorney
General shall:
(1) in consultation with the Commissioner of
Pennsylvania State Police, promulgate regulations to
implement this chapter; and
(2) monitor enforcement of the regulations by each law
enforcement agency which is a governmental entity of the
Commonwealth.
(b) Scope.--Regulations promulgated under subsection (a)
shall address:
(1) how an electronic recording of a custodial
interrogation must be made;
(2) the collection and review of electronic recordings,
or the absence of electronic recordings, by a supervisor in
each law enforcement agency;
(3) the assignment of supervisory responsibilities and a
chain of command to promote internal accountability;
(4) a process for explaining noncompliance with
procedures and imposing administrative sanctions for a
failure to comply which is not justified;
(5) a supervisory system expressly imposing on
individuals in specific positions a duty to ensure adequate
staffing, education, training and material resources to
implement this chapter; and
(6) a process for monitoring the chain of custody of an
electronic recording.
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(c) Making electronic video recording.--Regulations
promulgated under subsections (a) and (b)(1) for video recording
shall contain standards for the angle, focus and field of
vision of a recording device which reasonably promote accurate
recording of a custodial interrogation and reliable assessment
of the recording's accuracy and completeness.
(d) Failure to comply with regulations.--A court may
consider the failure by a law enforcement agency to comply with
regulations promulgated under subsections (a) and (b)(1) in
determining whether an individual's statement made during a
custodial interrogation conducted by the law enforcement agency
is admissible.
(e) Temporary regulations.--
(1) In order to facilitate the prompt implementation of
this chapter, the Office of Attorney General shall promulgate
temporary regulations under this section. Promulgation of
temporary regulations under this subsection shall not be
subject to any of the following:
(i) Section 612 of the act of April 9, 1929
(P.L.177, No.175), known as The Administrative Code of
1929.
(ii) Sections 201, 202, 203, 20 4 and 205 of the act
of July 31, 1968 (P.L.769, No.240), referred to as the
Commonwealth Documents Law.
(iii) Sections 204(b) and 301(10) of the act of
October 15, 1980 (P.L.950, No.164), known as the
Commonwealth Attorneys Act.
(iv) The act of June 25, 1982 (P.L.633, No.181),
known as the Regulatory Review Act.
(2) Regulations promulgated under this subsection shall
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expire on the earlier of:
(i) the effective date of regulations promulgated
under subsection (a); or
(ii) two years following the publication of the
temporary regulations.
(3) Paragraph (1) shall expire 180 days following the
effective date of this section.
§ 1116. Limitation of liability.
(a) Immunity.--A law enforcement agency which is a
governmental entity of the Commonwealth and has implemented
procedures reasonably designed to comply with regulations
adopted under section 1115 (relating to regulations relating to
electronic recording) and to ensure compliance with this chapter
is not subject to civil liability for damages arising from a
violation of this chapter. This subsection is subject to 42
Pa.C.S. Ch. 85 (relating to matters affecting government units).
(b) No right of action.--This chapter does not create a
right of action against a law enforcement officer.
§ 1117. Self-authentication.
(a) Certification.--In any pretrial or posttrial proceeding,
an electronic recording of a custodial interrogation is self-
authenticating if it is accompanied by a certificate of
authenticity sworn under oath or affirmation by an appropriate
law enforcement officer.
(b) Challenges.--This chapter does not limit the right of an
individual to challenge the authenticity of an electronic
recording of a custodial interrogation under the laws of this
Commonwealth other than this chapter.
§ 1118. (Reserved).
§ 1119. Uniformity of application and construction.
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In applying and construing this uniform act, consideration
must be given to the need to promote uniformity of the law with
respect to its subject matter among states that enact it.
§ 1120. Relation to Electronic Signatures in Global and
National Commerce Act.
To the extent permitted by 15 U.S.C. § 7002 (Electronic
Signatures in Global and National Commerce Act), this chapter
may supersede provisions of that act.
Section 2. This act shall take effect as follows:
(1) The following provisions shall take effect
immediately:
(i) The addition of 44 Pa.C.S. § 1115.
(ii) This section.
(2) The remainder of this act shall take effect on the
earlier of:
(i) the effective date of the temporary regulations
promulgated under 44 Pa.C.S. § 1115(e); or
(ii) January 1, 2025.
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