Appellant requests an expansion of State v. Scales,
The opinion of the court was delivered by: Meyer, J.
Douglas A. Conger was convicted of two counts of criminal sexual conduct in the second degree stemming from allegations that he inappropriately touched his daughter, A.C. At Conger's trial, Detective Brian Fox testified that Conger answered Fox's inquiry into the allegations by saying "[i]f my daughter said it happened, it must have happened."
Conger appealed his conviction, claiming that his statement to Detective Fox should have been excluded because police failed to record it, and asking that we extend the exclusionary rule of State v. Scales to non-custodial interrogations occurring at police stations. Conger asserts that a record of the interview would have made clear to the jury that he was not admitting guilt but answering a series of speculative questions. The court of appeals affirmed his conviction, concluding that it could not extend Scales. State v. Conger, No. C3-01-699, 2002 WL 77046, at *1 (Minn. App. Jan. 22, 2002). We granted review to consider whether Scales should be extended to non-custodial interrogations. We conclude it should not; Conger's statement was properly admitted and his conviction must be affirmed.
A brief review of the facts will provide the context for our decision. Social workers in Otter Tail County presented a "Touch Program" at the elementary school of ten-year-old A.C. on January 20, 2000, introducing children to the idea of good and bad touches. At the close of the program, A.C. told a nearby social worker that her brother gave her "bad touches," describing his kicking and pinching of her genitals. When social worker Sharon Bjork met with A.C. the next day to follow up, A.C. described her father rubbing her genitals and breasts once or twice when she climbed in bed with her parents. Bjork contacted the local police, who then questioned A.C.'s father, Douglas Conger.
Detective Fox interviewed Conger at the Perham police station and did not tape-record their conversation. Bjork interviewed Conger's wife, Barbara Conger, at the same time and recorded that conversation. Fox intentionally did not record Conger's interview, though equipment was available. He said he chose not to record the interview because Conger was not in custody, and because "[s]ometimes people talk more freely when they don't have a little red light on a tape recorder sitting on the table in front of them." Fox testified at the omnibus hearing that he did not intend to place Conger under arrest, but viewed him as a "participant in a possible crime."
During his interview, Conger denied any inappropriate touching of A.C. After about 20 minutes of questioning, Detective Fox told Conger that he was finished, but may have questions later. After finding discrepancies between what Barbara Conger told the social worker and what Douglas Conger had said, Fox asked Conger if he could pose some additional questions. Conger agreed. This second session of interviewing lasted 20 to 25 minutes and was not recorded. Fox testified at trial that during this second session Conger appeared nervous, flushed, and fidgety. Fox also testified that Conger stated toward the end of the second interview: "[i]f my daughter said it happened, it must have happened."
At the omnibus hearing, Conger moved to suppress his statement to Detective Fox based on the Scales decision. In State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994), this court mandated that police record all custodial interrogations, including the Miranda warning, or risk suppression of the evidence obtained. Conger asks that we extend the holding of Scales to require that police record non-custodial interrogations of suspects in police stations.
Preliminarily, we note that Conger did not properly preserve for review the issue of expanding Scales. At trial, Conger asked the district court to rule that the second interview became custodial, bringing his statement within the ambit of Scales. Changing tactics, Conger appealed to the court of appeals and this court to use its supervisory power to broaden the Scales decision to encompass non-custodial statements. A reviewing court must only consider the issues presented and heard by the trial court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Although this issue was not preserved for appeal, we will exercise our discretion to consider it because of its import for criminal procedure. See State v. Basting, 572 N.W.2d 281, 286 (Minn. 1997) (finding this court can hear issues raised for the first time before it on a discretionary basis). We exercise de novo review on issues of law. State v. Costello, 646 N.W.2d 204, 207 (Minn. 2002).
In two cases prior to Scales this court expressed increasing support of recording. State v. Pilcher, 472 N.W.2d 327, 332-33 (Minn. 1991); State v. Robinson, 427 N.W.2d 217, 224 n.5 (Minn. 1988). In Robinson we observed that disputes about whether or not the Miranda warning was given could be avoided if police record those warnings. And in Pilcher we urged the police to record all Miranda warnings and waivers. In Scales we concluded that the interests of justice required that police record all custodial interrogations. We held that "all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention." Scales, 518 N.W.2d at 592.
Although no empirical studies have been published assessing the impact of the Scales decision, from our vantage point the recording requirement has had positive effects. We take judicial notice of the fact that fewer cases come before us in which a key issue is whether a suspect waived his or her constitutional rights during interrogation.*fn1 The apparent reduction in appellate cases challenging Miranda warnings and waivers suggests that Scales has succeeded in providing an objective record to answer the contentious disputes around those issues. A national study of police departments that videotape custodial interrogations offers evidence of other benefits we predicted in Scales. In those jurisdictions, videos help police accurately assess a suspect's guilt or innocence, foster humane treatment of suspects and respect for civil rights, and serve to persuade the public that police interrogations are professional and trustworthy. William A. Geller, U.S. Dep't of Justice, Videotaping Interrogations and Confessions 10 (1993). Ninety-seven percent of those police departments found videotaping "on balance, to be useful." Id.
Despite evidence of the benefits of recording, many state courts faced with the question have declined to require that police record custodial interrogations.*fn2 Minnesota, Alaska, and Texas are the only states that exclude statements based on a failure to record.*fn3 A number of courts have recognized the merits of recording, but have refused to require the practice.*fn4 No state has yet done what Conger requests: require that police record non-custodial interrogations.
Conger argues that there is a serious loophole in Scales because police control the decision when to place a person in custody, and they can delay that decision to avoid the recording requirement. We recognize this potential for abuse of Scales. We also recognize that recording non-custodial interrogations when feasible would be beneficial. It would protect the due process rights of suspects by providing a record that establishes precisely what was said, and provides a basis to determine if and when their interrogation became custodial, and whether any statements were the result of coercion. As this court observed in Scales, an objective record of the encounter would prevent factual disputes about the denial of a defendant's constitutional rights, make it possible for defendants to challenge misleading or false testimony, reduce baseless claims against the state, and discourage unduly coercive police tactics. Scales, 518 N.W.2d at 591.
But many of the authorities relied on in Scales do not support its extension to the non-custodial context. The Uniform Rules of Criminal Procedure only require recording in custodial interrogations,*fn5 as does the Model Code of Pre-Arraignment Procedure.*fn6 Similarly, the majority of the academic articles advocating a recording requirement limit their endorsement to custodial interrogations.*fn7 And while Alaska and Texas similarly ...