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Interrogation, confessions, audiotaping and videotaping. Our recent critical casenote, infra, dealing with Minnesota's experience and example with respect to the use of electronic recording (audiotaping and videotaping) of police-conducted interrogations, both in the field and at the stationhouse, continues to receive good play. We urge courts and/or legislatures around the country to follow the Minnesota example, with the modification suggested below. There is no good excuse for not doing so.

Path breaking vs. not even following: Minnesota Supreme Court revisits Scales. The difference between bold, farsighted judicial decision and bland, myopic judicial indecision has never been better illustrated than by two criminal law decisions of two seemingly very different Minnesota Supreme Courts on the issue of mandated recording of police interrogation of criminal suspects, the first case being the court's pathbreaking 1994 decision in State v. Scales, 518 N.W.2d 587 (Minn 1994), the second, the court's timid, tentative, ground-hugging recent decision in State v. Conger, Minn. (filed 11.07.2002). This latter decision is bad news not only to many criminal justice reformers in Minnesota but also to criminal justice reformers -- prosecutors, defense counsel, judges, academicians, law enforcement officers and legislators -- in other jurisdictions who have been and are looking to Minnesota for information on the Minnesota experience with mandated recording and for Minnesota's leadership by example.

In State v. Scales, 518 N.W.2d 587 (Minn. 1994), the court, exercising its inherent judicial supervisory power, under the separation-of-powers doctrine, to insure the fair administration of the criminal justice system, prospectively ruled: a) that

all custodial interrogation of a crime suspect -- including the giving of information about rights, the obtaining of any waiver of those rights, and all questioning -- must be electronically recorded when feasible or when the interrogation occurs at a so-called place of detention, and b) that suppression of statements made in response to interrogation is required if the violation of the recording rule is substantial under the surrounding circumstances.

In effect, the decision adopted the recommendations, made over a quarter century ago, of the drafters of the American Law Institute's Model Code of Pre-Arraignment Procedure and the Uniform Rules of Criminal Procedure, both of which require the electronic recording of custodial interviews. See, Model Code of Pre-Arraignment Procedure § 130.4(3) (1975) ("The regulations relating to sound recordings shall establish procedures to provide a sound recording of ... (c) any questioning of the arrested person and any statement he makes in response thereto"); U.R.Crim.P. 243(b), 10 U.L.A. 32 (Master ed. Supp.1992) (as to an individual in custody, "[t]he informing of rights, any waiver thereof, and any questioning must be recorded upon a sound recording device whenever feasible or if questioning occurs at a place of detention").

In State v. Conger, Minn. (filed 11.07.2002), the court declined an opportunity to follow the logic underlying Scales, take the logical next step, and prospectively extend the recordation requirement to include, inter alia, all interrogation of a suspect that occurs at a place of detention, including any interrogation that may later be said to be non-custodial in nature.

In Conger, the Court really wasn't even being asked to lead, which it did in Scales, but simply to follow the leadership of many law enforcement agencies and rank-and-file officers. We have reason to believe there already is a de facto practice, wisely followed by many, possibly most, progressive law enforcement agencies and officers in Minnesota, of not only making audio or video recordings of all stationhouse interrogations of any suspect, custodial or not, but also of routinely using portable audio recorders during any field interrogations of a suspect, custodial or not. In other words, many officers have figured out that it makes practical sense and good police practice to follow the logic underlying Scales and record all interrogations of a suspect, in the field or in the station house, custodial or not. From this perspective, the court in Conger in effect was simply being asked to merely make uniform throughout the state what is already widespread practice among progressive investigators.

We have said before in these pages that, in our opinion, the Scales decision, written by the redoubtable Justice Rosalie E. Wahl, is far and away the most objectively beneficial criminal law decision of the Minnesota Supreme Court in the last 30 years. Before the decision, much court time relating to admission of and use of inculpatory statements by the defendant being prosecuted was expended in he-said/she-said disputes relating to the critical events surrounding the interrogation(s) and the obtaining of the statements at places of detention. Trial courts at suppression hearings generally resolved factual disputes in the prosecution's favor, but, on the other hand, prosecutors at trial were often left with the difficult task of trying to convince sometimes skeptical jurors that police did not overreach and that the defendant actually said what police testified he or she said.

The Scales decision served three main purposes (as well as many other important ones). It served the prophylactic purpose of helping to ensure police comply with Miranda and other constitutional restrictions on police investigative techniques, thus benefiting at least arrestees. It also dramatically reduced the need for extensive pretrial evidentiary hearings to resolve suppression issues of a factual nature (and also provided an accurate record for appellate review), thus benefiting the entire court system. Finally, it gave prosecutors a persuasive record of defendants' confessions for use at trial, at least when the confessions were obtained during custodial interrogation.

When the court first released the decision, police officers and prosecutors literally howled like Chicken Little that the sky had fallen. Among the common fears was that now echoed by the interrogating officer in Conger, that police use of recorders would inhibit suspects and decrease the likelihood of obtaining statements. A year later these same officers were trumpeting the virtues of the case. Indeed, one St. Paul homicide detective has been quoted as saying, undoubtedly with some hyperbole, that the Scales decision is the best thing that ever happened to him. Not only were the officers trumpeting the virtues of the case, they found it was to their advantage to go beyond the requirements. Thus, now, as we have said, many intelligently-run police departments in Minnesota routinely provide their officers with portable recorders for use in the field, thereby increasing the likelihood that in the future reasonable judges will be skeptical of any claim that recording of interrogation in the field was not feasible. Moreover, these same police departments have made it a practice to regularly record, often on videotape or on digital video media, all station house interrogations, custodial or not. Indeed, the county attorney for Minnesota's most-populous county, Hennepin, in a well-written June 2002 press release titled Eye on Interrogations: How videotaping serves the cause of justice, stated that "during the past eight years it has become clear that videotaped interrogations have strengthened the ability of police and prosecutors to secure convictions against the guilty" and "At the same time, they have helped protect the rights of suspects by ensuring the integrity of the criminal justice process." Among the benefits of electronic recording that she extolled are: a) preventing use of false confessions obtained through improper interrogation tactics, which "undermine our justice system and the public's trust in its integrity," b) "making law enforcement more effective and accountable," c) protecting police against unwarranted or frivolous claims of coercion, d) improving police interrogation practices, and e) providing prosecutors with "irrefutable evidence in the courtroom with the defendant's own words." She concluded, "Police and prosecutors have little to fear from a requirement to videotape all interrogations [emphasis supplied]. Recording not only protects the innocent, it helps convict the guilty and sustain the public's faith in our criminal justice system." Her views justifiably have received national attention. See, e.g., Margaret Talbot, True Confessions, Atlantic Monthly (July/August 2002). For other benefits of taping, see, n. 29 of Richard A. Leo, Richard J. Ofshe, Missing the Forest for the Trees, 74 Denver U. L. Rev. 1135 (1997) (recommending "mandatory electronic taping of the entirety of the interrogation process in all felony cases").

In the face of the voluntary extension of Scales by many law enforcement agencies, one might ask if there is any need for the court to mandate its extension. The answer is yes, for three reasons: the extension a) is good public policy and is necessitated by the logic underlying Scales, b) ensures that all suspects will be treated equally and fairly, and c) ensures that Minnesota will not find itself in the absolutely nightmarish, shameful position, which some other jurisdictions have found themselves in, of having to explain how, hidden from the cameras, some rogue officers were able to obtain false confessions from defendants later conclusively determined to have been factually innocent of any wrongdoing.

a) The extension of Scales is good public policy and is necessitated by the logic underlying Scales. The court's own decisions, including ironically its decision in Conger, demonstrate this. One such decision is State v. Wiernasz, 584 N.W.2d 1 (Minn. 1998), one of the leading decisions addressing when an interrogation is noncustodial, and therefore outside the requirements of Miranda, even though the interrogation occurs in the station house. The officers in that case questioned a young woman suspected of intentionally killing her just-born child. The questioning, which was videotaped, occurred at the station house following the administration of a polygraph examination to which the suspect voluntarily submitted.

The issue on a pretrial appeal by the state from a suppression order was whether the interrogation was custodial, in which case the officers should have given the suspect a Miranda warning. The court, in proceeding to hold that the interrogation was not custodial at the outset and did not become custodial at some point, stated, "There is no real dispute in this case concerning the facts relating to the circumstances of the interrogation, which was video taped pursuant to our decision in State v. Scales, 518 N.W.2d 587 (Minn. 1998)." In other words, because the interrogation was taped, the court was able to see for itself what transpired and thereby perform its independent review of the custody issue on the basis of what it was confident was a totally accurate understanding of the historical facts relating to the circumstances of the interrogation.

Another decision by the court demonstrating that extension of Scales makes good sense is State v. Sirvio, 579 N.W.2d 478 (Minn. 1998), a case in which police officers wisely used portable audiotape recorders in two field interrogations of a man suspected of murder by arson because he had reportedly confessed to a detoxification center employee. Both of the field interrogations occurred at the detoxification center. The first was not preceded by the giving of a Miranda warning, and therefore one of the issues on appeal from the subsequent conviction was whether the trial court erred in concluding it was noncustodial in nature. As in Wiernasz, the fact that the interrogation was recorded meant that the court on appeal could be confident that it was performing its independent review of the custody issue on the basis of an accurate understanding of the historical facts. Moreover, the recordings of the interrogations assisted the court in deciding another issue raised by the defendant, whether his incriminating statements were "involuntary" under pre-Miranda caselaw and therefore inadmissible without regard to whether he was in custody and whether the requirements of Miranda were met when he made his statements.

That extending Scales is pro-truth, rather than pro-prosecution or pro-defense, is made clear by other Minnesota decisions in which the accurate record provided by the taping of the interrogation allowed the reviewing judges to independently determine that the interrogation was custodial in nature and therefore should have been preceded by the giving of a Miranda warning. One such case is In re Welfare of G.S.P., 610 N.W.2d 651 (Minn.App. 2001), in which the recording of a field interrogation by police of a seventh grade student in the assistant principal's office (regarding his alleged unlawful possession of a BB gun on school property) provided the reviewing judges with an accurate record on which to base its independent determination that the interrogation was custodial and should have been preceded by a Miranda warning.

b) Extending Scales not only furthers the principles and logic underlying Scales, it also ensures that all equally-situated suspects will be treated equally and fairly. As things stand now, because many law enforcement agencies and officers have fully complied with the spirit of Scales and not just the letter, many suspects not given a Miranda warning are able to obtain a judicial determination of a custody or voluntariness issue on the basis of a completely accurate record. Others, however, including the defendant in Conger, are not able to obtain such a review. Instead, each of these defendants, whether raising a Miranda claim or a pre-Miranda claim of involuntariness, must be satisfied with a pre-Scales type of suppression hearing and its attendant he-said/she-said disputes relating to the critical events surrounding the interrogations as well as to what precisely did the interrogator and defendant say or not say. Similarly, because many law enforcement agencies and officers have fully complied with the spirit of Scales and not just the letter, many suspects not given a Miranda warning are able to base their decision whether to plead guilty or go to trial before a jury on an accurate understanding of what the state's evidence concerning their statements will be. Others, however, including the defendant in Conger, must be satisfied knowing that if the case goes to trial, the he-said/she-said dispute will continue.

c) Extending Scales also ensures that Minnesota will not find itself in the absolutely nightmarish, shameful position, which some other jurisdictions have found themselves in, of having to explain how, hidden from the cameras, some rogue officers were able to obtain false confessions from defendants later conclusively determined to have been factually innocent of any wrongdoing. See, e.g., the series of stories in the Chicago Tribune in 2001 and 2002 titled "Cops and Confessions," the numerous law review articles on the problem of false confessions written by Professors Richard A. Leo and Richard J. Oshe, including the one cited supra, and Professor Yale Kamisar's Killing Miranda in Baltimore: Reflections on David Simon's Homicide, in Jurist (February 1999, Vol. 2, No. 2).

Intentionally or not, wittingly or unwittingly, the Conger decision has highlighted a "flaw" or "loophole" in the Scales directive. This loophole allows an officer such as the one in that case, who apparently has a subjective belief that tape recording of interrogation inhibits some people from "talking freely," as well as an officer with more of an interest in obtaining a confession than in getting at the truth, to delibrately decide not to record the interrogation if the officer subjectively believes (or wants to believe?) it is not custodial in nature. While one must assume that the officer in Conger was not a trickster, the loophole leaves open the possibility that an officer, by not taping an interrogation even though taping is feasible, could "trick" a reviewing court into concluding that an interrogation was not custodial when in truth it was or that a confession was voluntary and reliable when in truth it was involuntary, unreliable and even false. Professor Kamisar speaks to this when he states:

It is not because a police officer is more dishonest than the rest of us that we should demand an objective recording of the critical events in the station house. Rather, it is because we are entitled to assume that an officer is no less human -- no less inclined to reconstruct and interpret past events in a light most favorable to himself -- that we should not allow him or her to be a judge of his or her own cause. Unless tape-recording of police interrogations is required, it will be of no great moment whether Miranda is expanded or cut down or reshaped. For absent such a requirement, sweet-talking police interrogators will be able to assault, maim, and all but kill Miranda (or, for that matter, any other confession rule).

Id. (Emphasis in parentheses supplied.)

While there is no indication in Conger that a recording of the station house interrogations might have provided evidence that the interrogations in fact were custodial in nature and therefore subject to Miranda or that the officer in any way improperly coerced a confession, the fact remains that by deciding not to record the interrogations even though it was feasible to do so the officer effectively was able to dictate the nature of review available with respect to any such claims the defendant might later make. Moreover, by acting as he did, the officer was able to prevent the prosecutor, defendant, defense counsel, the courts, and any jury from knowing precisely and completely what questions were asked and what statements made. Whether he knew it or not, he also thereby in effect was able to gamble that a reviewing court would resolve in his favor any he-said/she-said dispute regarding the circumstances relating to custody and/or voluntariness, including what was said and by whom. Similarly, as a result of the flaw or loophole in Scales, perpetuated by Conger, the officer was able in effect to gamble that he would prevail at a suppression hearing and thus be able to present to a jury, if the defendant didn't plead guilty, his subjective and not necessarily accurate or complete version of what the defendant said. There is, of course, always the possibility that such a gamble by an officer won't pay off and that the trial court, weighing the conflicting testimony and taking into account that the officer himself was responsible for the absence of an accurate and complete record of the interrogation, might conclude the interrogation was custodial and/or that any statements were involuntary. And there is the added possibility that defense counsel might succeed at trial in persuading the jury that in weighing the officer's testimony it should hold against the officer his intentional decision not to record the interrogation. That the defense has the constitutional right to make such an argument is without doubt, as even courts in states without any recordation requirement, such as Massachusetts, acknowledge.

The many benefits deriving from Scales -- hailed alike by police, prosecutors (including the chief prosecutor of our most-populous county in Minnesota with the most experience with Scales), defense counsel, courts and academicians -- are benefits that also will derive from eliminating the "flaw" or "loophole" left by Scales and not corrected by Conger. What the Scales flaw or loophole does is allow perpetuation of the pre-Scales "mess" in certain situations at the election of the occasional officer who, although she knows recording is feasible, deliberately chooses not to record an interrogation because, for whatever reasons, she doesn't particularly like the idea of recording interrogations.

Justice Holmes cautioned us to "think things, not words." If the Court in Conger had done so, it would have closed the Scales loophole immediately, rather than postponing the inevitable, by prospectively mandating the recording of all interrogations, where feasible, making it clear that recording of a station house interrogation, whether or not the officer believes it to be custodial, by definition is feasible. Instead, the Court basically got caught in a strange circle of reasoning, saying in effect that while it might make sense to extend Scales, Scales itself went only so far and therefore the court wouldn't extend it "at this time."

All of this takes us back , in our own circle, to where we started when we contrasted the boldness of the court in deciding Scales with the court's timidity in deciding Conger. Why the difference? (BRH 11.30.2002)

Update:

Editorial: Crime, False Confessions and Videotape (NYTimes 01.10.2003)

Susan Saulny, Why Confess to What You Didn't Do? - Commentary on now-infamous "Central Park Jogger Rape Case" and need for un-interrupted taping of entire interrogation, not just resulting confession (NYTimes 12.08.2002)

Court TV broadcasts movie The Interrogation of Michael Crowe, which dramatically illustrates need for taping: tape of entire interrogation of boy and subsequent DNA testing demonstrated that boy's confession was not only coerced but false

Further reading:

Statement of the D.C. Association of Criminal Defense Lawyers Before Committee on Judiciary 10.10.2001

Cops and Confessions (Special investigative series, Chicago Tribune 2001-2002)

Eye on Interrogations: How videotaping serves the cause of justice (Hennepin County Attorney 06.10.2002)

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