Pennsylvania has no statute or court rule requiring recording of custodial interrogations.
In November 2006, the Senate of the General Assembly passed Resolution 381, “to establish an advisory committee to study the underlying causes of wrongful convictions and to make findings and recommendations to reduce the possibility that in the future innocent persons will be wrongfully convicted.” The official name is the PA State Senate Judiciary Committee – Joint State Government Commission to Study Wrongful Convictions, consisting of members of the House and Senate. The resolution directs the Commission “to establish an advisory committee to study the underlying causes of wrongful convictions so that the advisory committee may develop a consensus on recommendations intended to reduce the possibility that in the future persons will be wrongfully convicted in this Commonwealth.”
The Advisory Committee held a number of hearings at which many witnesses testified concerning potential reforms in several areas of criminal practice and procedure, including the electronic recording of custodial interrogations of felony suspects. The Advisory Committee made its report to the full Commission. In September 2011, the Commission delivered to the Senate Judiciary Committee a lengthy, comprehensive report, proposing reforms to the state criminal justice system in eight areas (http://jsg. legis. state.pa.us/publications.cfm?JSPU_PUBLN_ID=212), including the following relating to electronic recording (pages 5 and 127):
A statute should require custodial interrogations to be electronically recorded with a coextensive wiretap exception for law enforcement.
The Commission’s discussion of this proposal is contained at pages 83 to 127 of the Report, and a proposed recording statute is contained in Appendix A, pages 169 to 172; the comments of the members who dissented from the recording recommendation appear at pages 310-12.
An Independent Report, prepared by the Law Enforcement and Victim Group Representatives, dated September 2011, expressed opposition to mandating the use of electronic recording without first implementing a pilot project monitored by the PA Commission on Crime and Delinquency.
The General Assembly has not yet acted on the Commission or the Law Enforcement reports.
Philadelphia Police Department. I have been advised that the city police department currently records custodial interrogations of homicide suspects, and has received private grants of $85,000 for additional video recording equipment, to enable expansion of recording to other crimes. The Philadelphia Police Department has 6,600 sworn officers, and the City has a population of 1,500,000.
Allegheny County. The county includes 166 police agencies, 119 of which are police departments. I have been advised that in 2014, the Allegheny County Chiefs of Police Association, in partnership with the Allegheny County District Attorney’s Office, implemented an electronic recording protocol, Electronic Recording of Custodial Interrogation Procedure, which contains the following provisions:
- Procedure. The use of electronic recording during custodial interrogations is intended to enhance the investigative process and assist in the prosecution of criminal cases. The recording of custodial interviews will assist the department in demonstrating the interrogation process, preserving the statements of the accused, and defending against claims such as deprivation of the right to counsel and the right against self- incrimination. While serving to enhance public confidence in the integrity of our investigations and prosecutions, this procedure is mindful of these and other benefits of recordings balanced with the overwhelming public procedure demands upon the police in solving crimes.
- Wiretap Scope awareness: Acting within the scope of this procedure, consent must be obtained from the subject prior to audio recording, per 18 PA.C.S.A. § 5701 et seq. (Wiretapping and Electronic Surveillance Control Act).
- Custodial Interrogation: Any interrogation during which (i) a reasonable person in the subject’s position would consider himself or herself to be in custody and (ii) during which questions are asked that are reasonably likely to elicit from the subject a confession, or an acknowledgment that he did not tell the truth in an initial statement.
- Electronic Recording…includes motion picture, audiotape, or videotape, or digital recording, or similar capabilities in the making of a record of an interview.
- Place of Detention: …means a building or a police station that is a place of operation for a municipal police department or other law enforcement agency…
- Recorded Media: The audio and video signal which are recorded upon a particular medium such as analog recording tape, digital tape, other portable digital storage media and the like.
- Members: All sworn police officers.
- Serious crime: Includes homicide, sexual assault, aggravated assault, arson, robbery, burglary, and attempt, conspiracy or solicitation to commit the same, whether by an adult or juvenile.
- Procedures. Procedure for Recording
- ...Members shall make an electronic recording of custodial interrogations at a place of detention when the subject to be interrogated is reasonably suspected of a serious crime.
In part IV B 1 through 9, exceptions to the recording requirement are set forth.
Section IV 11 provides: “Under current Pennsylvania law, consent must be obtained from the subject prior to audio recording. It is recognized, however, that asking for consent to audio record can have a chilling effect on some suspects that they refuse to continue to give a statement or even talk. Officers must retain the option of obtaining a statement from a suspect without audio recording in those exceptional cases where they reasonably believe and can articulate that asking for consent to audio record would deter a substantive statement. In such cases, when feasible, officers should attempt to obtain consent and audio record a suspect’s statement after a substantive interview has been taken place and then adopted by the suspect.” (Emphasis in original)
Section IV F 4 provides in part: “The entire custodial interrogation, from the Miranda warning to the conclusion of the interrogation, shall be recorded.”
Western PA Chiefs Association. This organization, comprised of chief law enforcement officers primarily from 21 counties in the western part of the state, has adopted the Allegheny County’s policy on recording.
Departments we have identified that presently record:
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