Court Ducks Question of Scales Application to FBI Interrogation Undertaken at Implicit Request of Local Law Enforcement Agency

State v. Sanders, Minn.S.Ct., 12/17/2009.  A jury convicted Mr. Sanders (whom I represented at trial) of criminal sexual conduct in the first degree.  The Saint Paul police issued an arrest warrant for Mr. Sanders; they asked the local FBI office for assistance in finding him.  The FBI office, in turn, called its Chicago office, which sent out a couple of agents to arrest him.  They figured, correctly, that he was at his mom’s house.

Two FBI agents interrogated Mr. Sanders; in keeping with standard FBI practice they did not record the interview.  Mr. Sanders mostly denied the accusations but the state wanted to offer evidence of the interview anyway.  The trial court permitted the state to do this over objections that the interview should have been recorded under State v. Scales, 518 N.W.2d 587 (Minn. 1994).  Mr. Sanders testified in his own defense, during which he denied making several of the statements that the FBI agent attributed to him.

The appellate court turns the legal issue into a geography quiz by framing the question in terms of the location of the interrogation.  Then, in keeping with its standard practice, the appellate court ducks the harder question whether Scales is applicable to a FBI interrogation at least implicitly undertaken at the behest of the SPPD.  They assume that it does so that they can then jump to the easier question whether there was prejudice to Mr. Sanders by the error; the appellate court finds none:

After considering all the relevant factors, we conclude that the jury’s verdict was surely unattributable to the district court’s admission of [the FBI agent’s] testimony regarding statements allegedly made by Sanders during an unrecorded out-of-state custodial interrogation conducted at a place of detention. Based on this conclusion, we affirm Sanders’s conviction. We need not, and do not, decide whether the Scales recording rule applies to a custodial interrogation conducted outside Minnesota or whether the alleged Scales violation in this case was substantial.

Three justices, Justice Paul Anderson, Justice Page and Justice Meyers, concluded that Scales applied to this interrogation.  Anderson concluded that it was harmless error; Page and Meyers would have remanded for a new trial.