CAAF’s website is back online and the daily journal shows two interesting entries.

First, the Air Force JAG certified another case (this is #5 in the term):

No. 14-6005/AF. U.S. v. Jacob R. MCINTYRE. CCA 2013-24. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, and a supporting brief were filed under Rule 22 this date on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY SUPPRESSING APPELLEE’S WRITTEN AND ORAL STATEMENTS THAT PERTAINED TO HIS VIEWING AND POSSESSING CHILD PORNOGRAPHY ON THE BASIS OF LACK OF CORROBORATION.

Appellee will file an answer under Rule 22(b)(1) on or before March 28, 2014.

We discussed McIntyre in this post. The AFCCA’s opinion is available here.

Second, CAAF denied a Government petition for reconsideration in the Air Force case of United States v. Wicks, 73 M.J. 93 (C.A.A.F. 2014) (CAAFlog case page). Wicks involved an interlocutory appeal of a military judge’s pretrial ruling that suppressed the results of a search of a mobile telephone. The search revealed evidence that the accused engaged in improper relationships with trainees while serving as a military training instructor at Joint Base San Antonio-Lackland, Texas. The Government appealed the ruling and the Air Force CCA reversed the trial judge. But CAAF reversed the Air Force CCA and reinstated the military judge’s ruling suppressing the results of the search.

Additionally, CAAF issued decisions in United States v. Danylo, No. 13-0570/AF (CAAFlog case page), and United States v. Kearns, No. 13-0565/AR (CAAFlog case page). The court decides both cases in favor of the Government. I will post analysis of these opinions tomorrow.

16 Responses to “CAAF’s website restored”

  1. AF JAG says:

    I’m pleased to see the TJAG cert on McIntyre.
     
    McIntyre was a flawed decision where the trial judge and AFCCA ignored signifcant corroborative evidence and instead demanded what the law does not:  the  corpus delecti of the crime.  If you read the opinion you see that the trial judge was essentially unwilling to accept anything short of the actual external hard drive that the accused confessed to possessing child pornography on as “corroboration evidence” in this case.  While the military judge disclaimed that in doing so he was requiring the “corpus delecti” in practice, this is EXACTLY what he was doing.
     
    Reading the opinion, the tirla judge also appeared to draw an artificial demarcation between conduct before and after the “charged timeframe” in considering corroborative evidence.  That is, he and AFCCA marginallized the fact that the forensic review of the computer by DCFL showed that a hard drive had been connected to the accused  computer when he said it was; that it had downloaded data at the time frame he claimed, and then investigators also found CP images in unallocated space on that same computer.  The judge and AFCCA then dismissed all of this, apparently because:  (1) the file transfer occurred before the accused entered active duty; and (2) because the external hard drive was not recovered by the government when both the accused and government agents searched his house with the consent of the accused.  To put it simply:  THAT IS NOT THE STANDARD.  There is no requirement that “corroborative conduct” occur within the charged timeframe of the offense.  That’s an artifiical line of demarcation found nowhere in MRE 304(g) or the corroboration caselaw.  If the gov’ts theory of liability for possession of child porn (which syncs with the accsued’s confession by the way) is that the accused downloaded the CP onto his hard drive before active duty, but then retained the hard drive with the CP AFTER he came on active duty, how could the forensic evidence showing a download from the accused’s CPU to his external hard drive not be “corroboration” evidence?
     
    The corroboration requirement is meant to avoid COERCED/FALSE confessions, NOT exclude accurate confessions on absurd technicalities.  CAAF’s jurisprudence appropriately describes the qunantum of evidence necessary to satisfy this purpose as “slight” or very slight”, because, if we were to return to a “corpus delecti” world where the confession is only admissible if there is corroborative evidence for each and every element of the crime, then confessions (described by the military judge during guilty pleas as “the strongest form of proof known to the law”) would become superfluous.
     
    I hope CAAF reverses this holding in keeping with their precedent.  Here there is no question that this confession was reliable.  In this case the government had forensic evidence that the accused downloaded images, like he said; onto to an external hard drive, like he said; and that it involved child pornopgraphy, like he said.  And why didn’t they find even more forensic evidence???  Because, let us not forget, the accused told OSI he purposefully was DELETING evidence of his search history on his second computer!!!  What a twisted rationale indeed if the corroboration rule would be abused to permit the suppression of a confession because “no corroboration could be found” when the accused did in fact, and CONFESSED to, purposefully DELETING what would otherwise have been corroboration evidence!
     
    In this case, what the government did not recover was the external hard drive (and read between the lines of the opinion, it appears that his spouse may have been involved in surreptitiously disposing of the hard drive in between one of OSI’s three trips to the McIntyre residence on the day of the accused’s confession), but that is the corpus delecti itself.  That’s kind of like saying that a drug use confession will only be corroborated with a videotape of the accusd snorting cocaine, versus information that the accused traveled to a known dug neighborhood, was seen with a drug dealer, disappeared behind a corner, and returned looking/acting high.
     
    BOTTOM LINE:  Corroboration is a useful prophylacticmeassure, but like all prophylactic meassures, its importance should not trump the underlying rationale of the rule:  namely admission of a voluntry confession whose reliability has been supported by some evidence, in CAAF’s words, “slight” to “very slight.”  There was no coercion in the interview, and in fact, it was videotaped for all to see to evaluate just this point.  In the absence of any coercion, and in the presence of some forensic evidence which tends to affirm the accuracy of the confession, suppressing this confession appears to be a lamentable episode of form over substance that the corroboration requirement of MREE 304(g) was NEVER meant to impose.

  2. Zachary D Spilman says:

    AF JAG says:
    because, if we were to return to a “corpus delecti” world where the confession is only admissible if there is corroborative evidence for each and every element of the crime, then confessions (described by the military judge during guilty pleas as “the strongest form of proof known to the law”) would become superfluous.

    Here we go again…

    A plea of guilty and a confession are not the same thing.

    “A plea of guilty is equivalent to a conviction and is the strongest form of proof known to the law.” Military Judge’s Benchbook, Ch. 2, §II, para. 2-2-1 (emphasis added).

    An out-of-court confession or admission is wholly different from a plea of guilty. Consider:

    NOTE 4: Corroboration. A pretrial admission or confession can only be considered as evidence against the accused if it is corroborated. Corroboration is not required for a statement made by the accused before the court, those made prior to or contemporaneously with the alleged criminal act, or for statements introduced under a rule of evidence other than that pertaining to the admissibility of admissions or confessions. The corroboration required for a pretrial statement is proof of independent facts which raise an inference of the truth of the essential facts admitted. The military judge alone determines the admissibility of the admission or confession. Corroborating evidence is usually introduced before the statement, but the statement may be admitted subject to later corroboration. If the military judge determines that there is sufficient evidence to corroborate the accused’s admission or confession and admits it, the members may consider any corroborating evidence in deciding what weight to give the admission or confession. United States v. Duvall, 47 MJ 189 (CAAF 1997). See also United States v. Faciane, 40 MJ 399 (CMA 1994). If the corroborating evidence contains uncharged misconduct, the military judge should give an appropriately tailored uncharged misconduct instruction. See Instruction 7-13-1.

    Military Judge’s Benchbook, Ch. 4, para. 4-1 (emphasis added). 

  3. AF JAG says:

    @Zachary Spillman, I’ve read the benchbook too, and I’m aware of the instruction.
     
    But you’re focusing on my sub-point rather than my larger point.  The sub-point is that “confessions” are essentially, in substance, a guilty plea to law enforcement.  The primary distinction from “guilty plea” vs. “confession” being that the former is a “confession” before a military judge.  In substance then, “confessions”  are traditionally regarded as the strongest proof under the law.  Basically the law waives corroboration if you confess to a military judge, but requires it for all other post-crime admissions or confessions. 
     
    I refernce that only as background to my larger point that the corroboration requirement was designed to impose only a modest hurdle to the admission of confessions:  requiring slight or very light corroboration which need only “raise an inference of truth” to make sure that we weren’t sweeping up coerced and false confessions with legitimate confessions.
     
    I think the world of electronic evidence is the next great frontier for corroboration evidence, especially in light of the proliferation of CPU crimes and CP cases in the military and society at large.  That’s why it is so importnat to get it right, and that’s why I hope CAAF reaffirms its corroboration jurisprudence to send this case back to trial for an accused who confessed to attempting to delete all electronic corroboration evidence of his crime. 
     
     

  4. Zachary D Spilman says:

    I’m happy to talk about the corroboration rule. But that conversation is impossible if you keep conflating a confession with a guilty plea (as you’ve done before). The two have far more differences than similarities.

    As for the purpose of the corroboration rule, it is not (as you claim) “to make sure that we weren’t sweeping up coerced and false confessions with legitimate confessions.” Rather:

    The rule of evidence which requires corroboration has a purpose. That “purpose is to prevent ‘errors in convictions based upon untrue confessions alone'” or suspect convictions based upon words which might “reflect the strain and confusion” caused by “the pressure of a police investigation.” 

    United States v. Yeoman, 25 M.J. 1, 4 (C.M.A. 1987) (quoting Smith v. United States, 348 U.S. 147, 153 (1954)).

    And the Supreme Court’s jurisprudence on this is pretty clear:

    The general rule that an accused may not be convicted on his own uncorroborated confession has previously been recognized by this Court, and has been consistently applied in the lower federal courts and in the overwhelming majority of state courts. Its purpose is to prevent errors in convictions based upon untrue confessions alone; its foundation lies in a long history of judicial experience with confessions, and in the realization that sound law enforcement requires police investigations which extend beyond the words of the accused

    Smith, 348 U.S. at 152-153 (citations and marks omitted) (emphasis added).

  5. AF JAG says:

    You’re right, the conversation is impossible with you when your obvious bias against, all confessions, any confessions prohibits an intellectually honest discussion of the topic.
     
    As a former militiary defense counsel myself, I get why you don’t like confessions as a defense counsel:  because they are devestating to your case.  I also understand that there are regrettable instances where confessions are the product of unlawful coercion producing illegal and unreliable confessions, and certainly no one supports that.  But beyond an understandable dislike for evidence which puts your client in the most jeopardy (which I can understand from a tactical standpoint), your prior assertions where you refuse to even conceede the reliability of “corroborated” confessions makes it clear there is no reasoning with you.  http://www.caaflog.com/2014/01/29/government-seeks-reconsideration-from-caaf-in-united-states-v-knapp-no-13-5012af-73-m-j-33/#comment-38791   Every confession is NOT a false confession, nor is every confession a legally coerced confession.  Your hostility to confessions generally doesn’t change what the law is.
     
    Finally, your recitation of the purpose of the corroboration rule doesn’t conflict with my synopsis of the purpose of the corroboration rule stated above:  to prevent false or coerced confessions.  It was never designed to serve as a hyper-technical apparatus to exclude voluntary and truthful confessions such as the one in this case.  I’ll let the readders judge for themsleves in the posts above.
     
    At this point, I think we should agree to disagree on this, because we are getting nowhere, AND you still apparently refuse to engage on the actual substantive issue I raised, which is the presence of corroboration in THIS CASE.  Namely, the ill-advisability of the Court in this case ignoring corroborative conduct just because it occurred outside of the “charged time frame” for the accused’s child porn possession.

  6. Zachary D Spilman says:

    You and I don’t know each other AF JAG, and you don’t know about the many cases I’ve worked (prosecution and defense) that involved devastating confessions and admissions. Obviously, there are many true, un-coerced confessions, that are properly admitted as evidence of guilt at trial. But a confession is still the least-reliable form of proof known to our law, as it is the only evidence that is presumed inadmissible and requires corroboration. 

    In the comment you linked to, I wrote:

    I don’t agree that a corroborated confession is more reliable than an uncorroborated confession, though I do agree that it is more admissible. 

    And I still don’t, because sometimes false confessions are the product of the corroboration (such as when the interrogator inadvertently leads the witness into the confession, like the story I referenced in my post: This American Life covers a false confession.). I do, however, believe that a confession can dramatically bolster the reliability of other evidence in a case. But good police work just doesn’t need a confession. 

    While insisting that the confession in McIntyre was “voluntary and truthful” (a question of fact for the trial, I’d think), it seems that you want to talk about the specific facts of the case without the record, the complete ruling of the judge, or the full details of the polygraph examination that prompted the “confession” at issue (and yes, I do want the questions asked, the charts and graphs, and the examiner’s complete professional record).

    Without that information, I just don’t see any facts to talk about.

  7. Matt says:

    Here is an interesting and thorough article on false confessions.
    THE CONSEQUENCES OF FALSE CONFESSIONS: DEPRIVATIONS OF LIBERTY AND MISCARRIAGES OF JUSTICE IN THE AGE OF PSYCHOLOGICAL INTERROGATION by Richard A. Leo and Richard J. Ofshe (1988) 88 J. Crim. L. & Criminology 429.
    It’s old, but there is a lot of good info that is still relevant.

  8. phil cave says:

    I once toyed with this argument.
     
    a.  Corroboration.  The prosecution must demonstrate sufficient independent admissible evidence corroborating the admissions sought to be offered by the prosecution.  Mil. R. Evid. 304(g).

    [T]he basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution shoulder the entire load.

    Tehan v. U.S. ex rel. Shott, 382 U.S. 406, 415 (1966).
     
    Independent evidence is evidence that is not based on or derived from the accused’s extra-judicial statements.  Opper v. United States, 348 U.S. 84, 93 (1954)(emphasis added)(emphsis added).  The point being that care should be exercised that any corroboration has to have been extant before the alleged confession, or that the prosecution establish that any post-confession evidence is not derivative.
     
    Mil. R. Evid. 304(g) itself explicitly states that:
     
    Other uncorroborated confessions or admissions of the accused which themselves require corroboration may not be used to supply this independent evidence.
     
    In Opper, the Supreme Court reviewed the “divergent” theories of corroboration.  After surveying the three primary theories, the Court held that:
     

    Thus, the independent evidence serves a dual function. It tends to make the admission reliable, thus corroborating it while also establishing independently the other necessary elements of the offense.  It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth. Those facts plus the other evidence besides the admission must, of course, be sufficient to find guilt beyond a reasonable doubt.

      
    Opper v. United States, 348 U.S. at 93; see also Smith v. United States, 348 U.S. 147(1954).
     
    Opper requires substantial independent evidence; whereas the military appellate courts have unconstitutionally diminished that important requirement to “slight” evidence.  Opper is an opinion delivered by Justice Reed.  Justice Douglas concurred in the result, believing that Forte stated the better requirement of how much corroboration was needed.  Id., at 95.  Justice Reed had acknowledged Forte.
     

    Other decisions tend to follow the rule enunciated in Forte v. United States, 68 App. D. C. 111, 115, 119, 94 F.2d 236, 240, 244, that the corroboration must consist of substantial evidence, independent of the accused’s extrajudicial statements, which tends to establish the whole of the corpus delicti.

    Opper v. United States, 348 U.S. 84, 93 (1954).
     
    The requirement of substantial independent evidence is used in Smith.  348 U.S. at 156.
     
    The American Heritage Dictionary variously defines substantial as: True or real; not imaginary, Solidly built; strong, Ample; sustaining: a substantial breakfast; Considerable in importance, value, degree, amount, or extent: won by a substantial margin.
     
    That same dictionary defines slight as: Small in size, degree, or amount: a slight tilt; a slight surplus; Lacking strength, substance, or solidity; frail: a slight foundation; slight evidence; Of small importance or consideration; trifling: slight matters; Small and slender in build or construction; delicate.  An alternative dictionary defines slight as:  having little substance or significance; “a flimsy excuse”; “slight evidence”; “a tenuous argument”; “a thin plot” [syn: flimsy] almost no or (with ‘a’) at least some; very little; “there’s slight chance that it will work”; “there’s a slight chance it will work.”  See WordNet® 2.1, © 2005 Princeton University.
     
    In United States v. Yeoman, 21 M.J. 1, 4 (C.M.A. 1987), the Court of Military Appeals, stated that “the quantum of evidence” needed to raise such an inference is “slight.”  The court cited to Opper, and then some string cites to several federal Circuit Court of Appeals cases, as a basis for it’s opinion.  In fact, that was not the quantum of evidence found and required to be proper in Opper.  In Opper it was “substantial” independent evidence.  The erroneous reading of Opper has continued through a series of military appellate cases.  In effect, the military appellate cases have created the functional equivalent of an exception to the rule – an exception that eviscerates and swallows the rule.  See e.g. United States v. Maio, 34 M.J. 215 (C.M.A. 1992).  The court in Maio, stated that the “characterization [of slight corroboration] reflects our understanding that it need not establish beyond a reasonable doubt or by a preponderance of the evidence the truth of the essential facts stated in the confession.”  Id. at 218.  This understanding is flawed.  It is flawed because it is impossible to rationalize the military quantum requirement of “slight” with the Supreme Court’s quantum of “substantial” independent evidence.
     
    Judge Sullivan, makes the point.
     

    Over the years since Smith and Opper, courts have tended to minimize, in their verbal formulations, the degree of corroboration necessary to receive statements of an accused and to sustain convictions based thereon. Still I know of no conviction that has been sustained in which, apart from the words of the accused, there was no evidence whatever that a crime occurred.  Looking beyond mere verbiage, the cases convince me that, in America, we do not allow someone to be convicted unless there is some level of external evidence that a crime has occurred, no matter how many times or ways the accused has admitted it outside a courtroom. Whether this policy is based on due process or some other constitutional value is not specified.

    United States v. Maio, 34 M.J. at 221
     

  9. phil cave says:

    “several federal Circuit Court of Appeals cases, as a basis for it’s opinion.”
    There was a footnote at the end of the sentence.
    [n.1]  The federal cases are cited are “cert. denied.”  [D]enial of a petition for writ of certiorari simply means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter “of sound judicial discretion.” A variety of considerations underlie denials of the writ, and as to the same petition different reasons may lead different Justices to the same result.  All that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, the Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated.  United States v. Carver, 260 U.S. 482 (1923).  See also, Evans and Jordan v. Stephens, et. al., 544 U.S. 942, n.1 (2005)(“Nothing is more basic to the functioning of this Court than an understanding that denial of certiorari is occasioned by a variety of reasons which precludes the implication that were the case here the merits would go against the petitioner”); and see, Stern & Gressman, Supreme Court Practice, 7th ed., para. 5.7.

  10. stewie says:

    Concur with Zach.  Confessions are not either in fact or practically the strongest form of evidence known.  Guilty pleas are, because they are done in open court, publicly, under oath, with an attorney sitting right next to you.  Confessions are, often, done in a police station or other at least somewhat coercive environment, not with an attorney next to you, and often at the conclusion of an interrogation session.
     
    Practically speaking, I told my TCs to pretend the confession didn’t exist in preparing for trial.  Treat it like a cherry on top of the sundae but assume you have to build and prove your case without the confession, because on both sides I’ve seen plenty of cases with confession end with acquittal for a couple of reasons.
     
    1. Panels (just like everyone else) don’t like/trust CID.
    2. What some call a confession is more properly described as an admission.

  11. Christian Deichert says:

    AF JAG, I’m going to agree with my other learned colleagues here — confessions are nowhere near guilty pleas.  Wouldn’t make much sense to have rules governing the admissability of cofessions, and to allow motions suppressing them, if they were.
     
    At least, I know that’s how we taught it at JASOC when I was teaching at AFJAGS, and I’m pretty sure it’s not a new addition to the curriculum.

  12. AF JAG says:

    Gentlemen,
     
    If you don’t mind me breaking in on your ideological attack against the probative value of confessions, I’d submit the following to you–BREAKING NEWS,  CAAF says confessions are the best form of proof known to the law . . . AS OF 2002.  Or maybe you were too busy reading all of your false confession journal articles and somehow missed United States v. Ellis, 57 M.J. 375 (CAAF 2002):
     
              ” [A] voluntary confession of guilt is among the most effectual proofs in the law, and constitutes the strongest evidence against the party making it that can be given of the facts stated in such confession.” Hopt v. Utah, 110 U.S. 574, 584, 4 S.Ct. 202, 28 L.Ed. 262 (1884). “A deliberate, voluntary confession of guilt is among the most effective proofs in the law.” United States v. Monge, 1 USCMA 95, 97, 2 CMR 1, 3 (1952). As the Supreme Court recently reiterated:  A confession is like no other evidence. Indeed, “the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him…. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.”  Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (citations omitted).  Thus, appellant’s confession goes far in rendering harmless any error in the military judge’s failure to give an adverse inference instruction or stop trial counsel from commenting on the defense’s inability to examine Timmy’s brain and meninges.”
     
    Id. at 381.
     
    But your flawed position(s) that confessions are not, factually and legally, the highest form of proof known to the law is/are really beside the point.  I’m still waiting for somone to engage on the SUBSTANTIVE ISSUE I raised in my first post:  that AFCCA’s holding of “no corroboration” in this case is inherrently flawed insofar as the evidence in this case demonstrated the accused pursued the same course of conduct he claimed in his confession, and all the government was lacking at trial was the corpus delecti, i.e. the external hard drive he saved it on (and which his wife probably disposed of). 
     
    So any takers on the substantive question, or shall we continue thrash about more in your “Alice in Wonderland” scenario where confessions have no probabtive value?
     

  13. Zachary D Spilman says:

    Well now you’re just selectively quoting from caselaw to try and rehabilitate your flawed theory AF JAG

    United States v. Ellis, 57 M.J. 375 (C.A.A.F. 2002) (link to slip op.), wasn’t about the corroboration rule. Rather, it was about voluntariness and the Government’s loss of key physical evidence. It also resulted in the five judges of CAAF writing four separate opinions (one dissent, two concurring).

    But more importantly, the very next paragraph after the passage you quoted is:

    Of course, this assumes appellant’s confession is reliable. False voluntary confessions do exist, and when their reliability is called into question, so too is their otherwise overwhelming power to prove the declarant’s guilt. Moreover, the factual question whether a confession is reliable is for the members of a court-martial to decide. 

    Ellis, 57 M.J. at 381 (citations omitted).

    Moreover, Judge Baker’s concurring opinion explains:

    As the lead opinion rightly states, appellant bore a heavy burden in attempting to persuade members that his confession was a false product of unlawful police pressure. As the Court stated in Arizona v. Fulminante, a voluntary and corroborated confession “is like no other evidence. Indeed, ‘the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him….” As noted above, appellant’s confession was particularly damaging. It was specific, graphic, and consistent with the Government’s theory of the case.

    Ellis, 57 M.J. at 386-387 (citation omitted) (emphasis added). And Judge Effron’s dissenting opinion adds:

    The defense vigorously challenged the voluntariness of the confession and asked the members to disregard it as unreliable and uncorroborated by the medical evidence. In support of the corroboration requirement, the prosecution relied on the disputed expert testimony. See Mil.R.Evid. 304(g), Manual, supra. The military judge instructed the members that it was their responsibility to determine whether the confession was voluntary and whether it was sufficiently corroborated.

    Ellis, 57 M.J. at 388 (emphasis added).

    No other type of evidence is treated as skeptically as a confession.

  14. Christian Deichert says:

    AF JAG, I would agree with you that it appears there was sufficient corroboration in this case.  But you’re making it very hard to agree with you, especially when you rely on a misquote of the benchbook instruction (confusing guilty pleas and confessions) as the basis of your argument, then equate a guilty plea to a confession based on language in a case that was not based on equating those two concepts.
     
    I’m a chief of justice.  I love confessions — when they’re corroborated and admitted at trial.  (I didn’t love them so much as a defense counsel, but if I couldn’t get them suppressed, they were pretty useful for giving clients a reality check on where they stood.)  But — and this is a big but — Confessions.  Are.  Not.  Guilty pleas.  Please disabuse yourself of this fallacy.

  15. AF JAG says:

    **SIGH**
     
    Gentlemen,
     
    Please understand an ANALOGY when youu see one.  Now the careless phrasing of the analogy above (i.e. “because, if we were to return to a “corpus delecti” world where the confession is only admissible if there is corroborative evidence for each and every element of the crime, then confessions (described by the military judge during guilty pleas as “the strongest form of proof known to the law”) would become superfluous”) that’s on me.  BUT, the dogged refusal (up until the last few posts) to acknowledge the evidentiary force of confessions, that’s on you all.
     
    First, I’m fully aware that guilty pleas are legally distinct from confessions, OBVIOUSLY.  As I tried to explain repeatedly above, I was merely analogizing sworn confessions to guilty pleas as being at core a functional equivalent insofar as both involved a VOLUNTARY, SWORN,  (at least as applied to the facts of the case before AFCCA in U.S. v. McIntyre, where  the written confession was recived via an AF 1168–and for all non-AF folks, that’s a witness statement form with a certifcation that “I swear or affirm I have read this statement, initialed all pages and corrections, and it is true and correct to the best of my knowledge and belief”); INCULPATORY statement, after rights advisement, to a law enforcement figure  If that’s not damn close to a guilty plea in front of a military judge, just minus the judge in the event of the confession (w/ all of the pre-reqs referenced above) to OSI, then I don’t know what is. 
     
    And yes gentlemen, lest you hit me with another brilliant piece of the obvious, I know that the accused has counsel sitting with him at his guilty plea and not (usually) his interogation with OSI, but what I’m focusing on is the significant factual similarities between these two scenarios based upon the fact that they involve:  (1) voluntary; (2) sworn; (3) inculpatory; (4) statements to law enforcement official(s); (5) after rights advisement. 
     
    It’s in light of all of these similarities that I said that a voluntary confesion was functionally as powerful as a guilty plea–that’s all.
    So please rest assured–I’m not relying on a misquote of anything, nor am I confusing anything.  I chose United States v. Ellis as a quick tool to showcase some of CAAF’s unequivocal language on the subject of the evidentiary power of voluntary confessions–that’s all.  I understand exactly what I’m saying.  I understand the Benchbook instruction to an accused during a guilty plea versus the corroboration instruction to the panel considering a confession in a litigated case–that’s obvious and elementary.  And, once more, with feeling:  All I was saying (again, as my 3 line sub-point to my 42 line larger argument of whether corroboration existed in this case) was that in applying the corroboration rules, we should be mindful that they were not designed to be a hyper-technical set of guidelines to exclude voluntary confessions, but rather, to provide a gatekeeper function to provide an “inference of truth” to the contents of the confession not otherwise challenged as involuntary.
     
    In closing, I’ll say a quick thanks to @Christian Deichert for adressing the SUBSTANTIVE issue of sufficient corroboration in this case with me–I’m glad we finally got there.
     
     

  16. Zachary D Spilman says:

    that’s a witness statement form with a certifcation that “I swear or affirm I have read this statement, initialed all pages and corrections, and it is true and correct to the best of my knowledge and belief”); INCULPATORY statement, after rights advisement, to a law enforcement figure  If that’s not damn close to a guilty plea in front of a military judge, just minus the judge in the event of the confession (w/ all of the pre-reqs referenced above) to OSI, then I don’t know what is. 

    That’s nothing like a guilty plea.