State v. Sanders

ANDERSON, PAUL H., Justice

(concurring).

I agree with the result reached by the majority, but I concur because I do not agree with the approach used by the majority to reach this result. The majority appears to assume without deciding that the Scales rule applies to out-of-state custodial interrogations and then proceeds with a harmless-error analysis. I would decide this case based on harmless error; but unlike the majority, I would do so after first holding that Scales applies to this interrogation.

On appeal, Sanders has the burden of proving both that the district court abused its discretion in admitting the interrogation evidence collected by the FBI and that he was prejudiced by the admission of that evidence. State v. Nunn, 561 N.W.2d 902, 907 (Minn.1997) (citing State v. Steinbuch, 514 N.W.2d 798, 799 (Minn.1994)). As the majority states, if the district court’s decision to admit this evidence was harmless beyond a reasonable doubt, reversal is not warranted. State v. Munson, 594 N.W.2d 128, 143 (Minn.1999). “An error is harmless beyond a reasonable doubt only ‘[i]f the verdict actually rendered was surely unattributable to the error.’ ” Id. (quoting State v. Jones, 556 N.W.2d 903, 910 (Minn.1996)). I conclude that it was error for the district court to admit evidence of the interrogation of Sanders given the FBI’s failure to record the interrogation; but based on my review of the record, I conclude the jury’s verdict as rendered was surely unattributable to the error. Here, the evidence introduced from the unrecorded interrogation was neither inculpatory nor prejudicial to Sanders.

Because I, unlike the majority, conclude that Scales applies to this interrogation, further discussion with respect to Scales is in order. The Scales opinion was issued by our court on June 30, 1994, one day before I joined the court. When we adopted the Scales rule in 1994, we were only the second state in the nation to adopt this approach. Our decision to adopt the Scales rule was greeted with considerable skepticism and dissent. Over the years, the wisdom of our decision has been proven and many law enforcement officials now heartily endorse recorded interrogations as an effective law enforcement tool.

Scales has significantly reduced the number of law enforcement issues confronting the courts. When I first joined our court, we were still dealing with many pre-Scales cases challenging Miranda warnings given by police officers. It was fairly routine for a defendant to question the propriety of an officer’s Miranda warning. The use of Scales has revealed, in the vast majority of cases, the competence and general conscientiousness with which police officers in Minnesota advise *890defendants of their rights under Miranda. As a result, in recent years, we have very few valid Miranda challenges that have come to our court. This is a good development.

Further, the use of Scales has in many cases eliminated frivolous and unfounded objections by defendants as to the circumstances surrounding their interrogation. While law enforcement initially feared that by having interrogations recorded it would lose an effective component of its interrogation of defendants, the opposite is true. Not only has Scales revealed that in almost all cases law enforcement does a conscientious job when conducting an interrogation, the recorded interrogation frequently turns out to be some of the best evidence against the defendant. In essence, Scales has resulted in the best of both worlds. The defendant’s rights are protected and law enforcement is more effective.

I agree with the dissent that the rationale underlying Scales should and does apply with equal force to interrogations conducted both within and outside Minnesota. I do not understand the FBI’s failure to use this proven procedure especially in light of the FBI’s history in the middle of the 20th Century. During that time period, the FBI frequently took the lead nationally in advising defendants of their rights under the Constitution. Therefore, like the dissent, I would address the question of the Scales error head on and would conclude that Scales applies here. Nevertheless, because I conclude that any error was harmless, I would affirm Sanders’s conviction.