Military Rule of Evidence 304(c) (2013) (formerly M.R.E. 304(g)) states the corroboration rule, beginning with this paragraph:

An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been admitted into evidence that corroborates the essential facts admitted to justify sufficiently an inference of their truth.

M.R.E. 304(c)(1). An excellent article by Colonel J. Wesley Moore, USAF, The Corroboration Quandary: A Historical Overview of the Interpretation of MRE 304(g), 63 A.F. L. Rev. 89 (2011) (available here), provides a comprehensive analysis of this rule. And CAAF had two good occasions during the past term to weigh in on this subject, first in United States v. McPherson, 73 M.J. 393 (C.A.A.F. 2014) (CAAFlog case page), where the court rejected the defense efforts to obtain review of the AFCCA’s back-to-the-future theory of corroboration (discussed here and here), and second in United States v. McIntyre, No. 14-6005/AF, where the court summarily rejected an Air Force certification of the AFCCA’s rejection of a Government interlocutory appeal of a military judge’s ruling that suppressed a confession due to lack of corroboration (discussed here).

But I’ve long believed that the rule is worthy of a fresh analysis by our civilian court in part because confessions are the least reliable form of proof known to the law. A confession is the only form of proof that is both presumed inadmissible (when challenged, the Government has the burden to show admissibility) and requires corroboration (separate from the confession itself or another confession). Unlike eyewitness identification, circumstantial evidence, or inconsistent testimony from an alleged victim loaded with bias and prejudice, an accused cannot be convicted on his confession alone.

A recent unpublished decision by a three-judge panel of the Navy-Marine Corps CCA, in United States v. Green, No. 201300276 (N-M. Ct. Crim. App. July 31, 2014) (link to unpub. op.), might just get the corroboration rule back to CAAF. The CCA affirms the findings and sentence, that include a conviction for rape of a child and a sentence of confinement for 140 months, after concluding that the appellant’s confession was sufficiently corroborated.

The case involves a confession that was essential to the Prosecution’s case:

As the appellant prepared to deploy in late July, his wife began to suspect him of having an affair. After he deployed, she left him and took both children back to her hometown. Using his password, she hacked into her husband’s email account and discovered links to a Facebook profile name of “Bobby Warren”. When she looked up the profile of “Bobby Warren”, she discovered her husband’s picture and several disturbing posted comments. One post in particular concerned her because “Bobby Warren” seemingly expressed an interest in incest. Alarmed, she contacted a family friend and local police for assistance. Ultimately, she reported her suspicions to agents from the Naval Criminal Investigative Service (NCIS).

Soon thereafter NCIS agents initiated an investigation. With only the generalized information provided by the appellant’s wife, consisting primarily of the “Bobby Warren” Facebook posts, agents had little to go on before they interrogated the appellant. However, in a series of interviews with NCIS investigators, the appellant described in detail numerous instances of sexually abusing his children.

Slip op. at 3. A footnote adds: “A forensic examination of the daughter found no physical evidence of sexual trauma. Appellate Exhibit XXI. Additionally, a forensic interview of her was inconclusive.” Slip op. at 3 n.3.

The defense moved to suppress the confession for lack of corroboration but the military judge denied the motion, citing four corroborative factors:

1) The appellant’s uncharacteristic interest in bathing his daughter and son as described by the appellant’s wife;

2) Independent evidence that the appellant accessed the website “literotica”;

3) Independent evidence of the appellant’s postings under the Facebook pseudonym “Bobby Warren”; and

4) Evidence that the daughter’s regression in potty training could be caused by sexual abuse.

Slip op. at 4. The CCA discusses in detail only the first three of these four factors (the fourth is found adequate in a one-sentence footnote, slip op. at 4 n.5). Senior Judge Ward writes for the panel and begins by noting that “the quantum of independent evidence necessary to corroborate a confession is ‘very low’ as it ‘must raise only an inference of truth as to the essential facts admitted.'” Slip op. at 5 (quoting United States v. Seay, 60 M.J. 73, 79-80 (C.A.A.F. 2004)).

On the first corroborative factor found by the trial judge – the appellant’s interest in bathing his children – Senior Judge Ward distinguishes the facts of United States v. Faciane, 40 M.J. 399 (C.M.A. 1994), from the facts of this case. Faciane considered evidence of a child’s unusual behavior after visiting the appellant as corroboration of the appellant’s confession to sexually touching the child, but the CMA excluded the child’s interview with a child protective services official as inadmissible hearsay. The CMA found that the remaining testimony (of the child’s mother and daycare provider) was insufficient to corroborate the appellant’s confession, concluding that “although the Government argues that appellant’s exclusive custody of the child establishes that he had access and the opportunity to abuse her, we are unwilling to attach a criminal connotation to the mere fact of a parental visit.” 40 M.J. at 403. In contrast, Senior Judge Ward notes:

Here, the military judge focused more so on the uncharacteristic interest the appellant displayed in bathing his daughter, something his wife noticed at the time. Despite his sudden willingness to bathe his daughter and ready her for bed, as many as four to five nights a week, the appellant’s wife testified that the appellant still remained largely uninterested in any other parental responsibilities or care. . . .

The nature of this interaction as described during the appellant’s confession coincides with the uncharacteristic interest the appellant displayed with his daughter as described by his wife. Like the military judge, we find that this specific access, combined with the uncharacteristic interest displayed by the appellant, corroborated some of the essential facts of his confession.

Green, slip op. at 6-7.

On the second corroborative factor found by the trial judge – the appellant’s visit to a website – Senior Judge Ward notes that while the appellant claimed that reading stories on the website “ultimately led him to sexually abusing his children,” slip op. at 7, the forensic evidence proved only that “he visited the website in March 2012, approximately eight months after his offenses,” slip op. at 8. But the CCA finds that this contradiction amounts only to “lack of temporal proximity,” and Senior Judge Ward writes that “lack of temporal proximity may influence the weight to be given, but it does not exclude this fact as irrelevant as the appellant argues.” Slip op. at 8.

This conclusion on temporal proximity is similar of the back-to-the-future theory of corroboration employed by the AFCCA in McPherson, where that court found that the appellant’s possession of steroids after beginning active duty corroborated his confession to possession of steroids before beginning active duty (about which he lied during the enlistment process). CAAF didn’t grant review of this issue in McPherson, but Green gives the court another chance to consider weighing in.

On the third corroborative factor found by the trial judge – the appellant’s pseudonymous Facebook posts – Senior Judge Ward dissects the plain language of the MRE 304(g) (in effect at the time of trial) to conclude that the Facebook posts may serve as corroboration. MRE 304(g) included this sentence:

Other uncorroborated confessions or admissions of the accused that would themselves require corroboration may not be used to supply this independent evidence.

See also MRE 304(c)(2) (2013). A plain reading of this sentence indicates that the appellant’s Facebook posts are other uncorroborated admissions that may not be used to corroborate his confession to NCIS. But Senior Judge Ward’s conclusion for the CCA is that:

[Opper v. United States, 348 U.S. 84, 89-90 (1954)] only envisions statements made by an accused while under suspicion of the confessed to offense. We find no such circumstances here. The appellant posted these comments months before anyone suspected him of any offense, and we find no circumstances of police coercion or other dangers of false confession present. Moreover, nowhere in these posts is there an “admission of one of the formal ‘elements’ . . . or of a fact subsidiary to the proof of [an] ‘element[]’” to the confessed crime. Smith, 348 U.S. at 155. We find therefore that these posts were available as independent corroboration under MIL. R. EVID. 304(g) and Opper.

Slip op. at 10.

I think the facts of this case provide CAAF with a good basis to reexamine application of the corroboration rule in courts-martial (if the court is interested in doing so).

30 Responses to “An interesting corroboration rule decision from the NMCCA”

  1. The Silver Fox says:

    “[C]onfessions are the least reliable form of proof known to the law.”  In the words of the Gipper, “there you go again.”

  2. stewie says:

    He goes there again because he is right. What other evidence explicitly requires the government to corroborate in order to get it admitted? False confessions can and do happen for various reasons. Thus, we require corroboration. 

  3. Advocaat says:

    We require corroboration for confessions because of their great probative value.  And, yes, false confessions are real (a debt of gratitude to Dr. Leo).  However, to say categorically that confessions are the least reliable form of proof known to the law invites the strictest of scrutiny.  Is there data to suggest confessions fall below eyewitness reliability?  Who did the study?  Was it peer reviewed?  What do other studies reveal?  What were the circumstances of these false confessions v. true confessions?  What percentage of confessions have been proven false?  How is “false” defined?  I must confess (truthfully, of course) that I don’t accept this thesis without a lot more corroboration. 

  4. DCGoneGalt says:

    I’m with Advocaat on this one.  While false confessions do occur, and I don’t claim to be an expert on the frequence, I would say they are nowhere near the least reliable form of proof.  Based on my experience, I would argue that nearly all circumstantial evidence is less reliable than the average confession.  Nor do I think that the number of false confessions is something that is readily ascertainable with any degree of certainty, much like figuring out the number of sexual assault allegations that are false.  IMO, the reason that corroboration is required for confessions is because to most people (including members, lawyers, and judges) they are akin to super-evidence and almost always equal a guilty vote.  Therefore, the government has to put up at least some evidence that the confession is not wholly false.  That being said, I still can’t figure out the Back to the Future reasoning.

  5. stewie says:

    And yet, the law treats them that way. It gives them extra barriers that it doesn’t give other non-hearsay evidence (which is what a statement of the accused is). You can argue, and panels/juries will agree (that’s why false confession experts are necessary), that a confession, once introduced, seals the deal more or less.
    But legally we are highly suspicious of evidence that has that powerful of an effect, particularly since there are so many ways in which it is too powerful, and it’s too prone to error. If coerced or false confessions were not a concern, we’d let a case stand on a confession alone, regardless of how powerful they are. We don’t because of a myriad number of concerns/issues with how confessions are usually obtained, or because we don’t trust that folks don’t lie, even about confessions (to protect someone else, because of mental issues, to get attention, etc.).

  6. Christian Deichert says:

    I was not familiar with Opper.  That said, I’m not sure this holding is consistent with Opper.  The accused here was charged with sexually abusing his children between May and July 2011.  His 4 July facebook post on incest was held to corroborate his confession, yet this would have been done after some if not all of the charged acts.  How, then, does the holding of the court jibe with Opper itself, quoted at fn 13?

    “We think that an accused’s admissions of essential facts or elements of the crime, subsequent to the crime, are of the same character as confessions and that corroboration should be required.” Opper, 348 U.S. at 90 (citations omitted).”

    I also see Opper as defining circumstances requiring corroboration, not determining those that don’t.

  7. The Silver Fox says:

    “Least reliable form of proof” + “very slight” corroboration (can) = conviction.  When it comes to CAAFLog, the falcon truly cannot hear the falconer.  
    As an aside, don’t you love it when people say “cowobowation”? 

  8. The Silver Fox says:

    Also, “I shot the clerk”?  Anybody?

  9. Dew_Process says:

    For anyone interested in the empirical side of “false confessions,” I urge you to read Prof. Brandon Garrett’s forthcoming Law Review article, Contaminated Confessions Revisited, available here:  and his book, Convicting the Innocent. 
    For an interesting 2 1/2 minute video by Prof. Garrett on the Innocence Project’s website, go here:
    DISCLAIMER:  The case featured by Prof. Garrett, Frank Sterling, is a case that I worked on pretrial with his lead counsel.  While there was little doubt in our minds that the cops had fed the details to Sterling and then recorded his confession, the Judge over the prosecutor’s objections [now a federal district judge] refused to allow any expert testimony about it.  Fortunately, advances in DNA opened the door to proving his innocence a couple of years ago.

  10. Charlie Gittins says:

    False confessions happen all the time.  I had an AF kid admit to rape to get out of the room after 8 hours of interrogation and he confessed only after a polygrapher  told him (falsely) that he failed a polygraph.  The polygraph was actually exculpatory, but because of the stupid MRE on polygraphs no one could mention it and I couldn’t Q the polygrapher on her lie to the client.  So, I just made it look like the butch dyke (she had a crew cut)  polygrapher extracted a false confession after 8 hours of interrogation. 1 spec rape case.  6 members, all officers, split 3-3 after 11 hours of deliberations.  Very proud of that outcome for the client.  

  11. The Silver Fox says:

    Easy there, Charlie.  Look, I get the point, gents.  Do false confessions happen?  Yes.  Do witnesses lie? Yes.  Does that mean that both are categorically bad forms of evidence?  No.  Has anyone on this blog other than me ever represented a guilty client?

  12. Charlie Gittins says:

    Silver Fox:
    Yeah. I have represented many guilty clients.  The clearly guilty are NOT the issue.  It is the clients that G cannot prove are guilty and use bullshit to try to get a false confession that I have a problem with.  To tell you the truth, absent a confession or DNA, in 25 years of trial work, I am convinced that NCIS could not prove a case beyond a reasonable doubt.  They are poseurs pretending to be cops.
    And yes. false confessions and false testimony are categorically bad forms of evidence.  If you don’t get that, you need to do legal assistance.

  13. The Silver Fox says:

    Clever, but confessions and testimony aren’t, as a general rule, bad forms of evidence.  And any criminal lawyer worth his salt, prosecution or defense, ought to be against obtaining false confessions.  The disagreement comes in defining what is “BS” to obtain a confession?  Is rapport building off limits? When the CID/NCIS/OSI agents try to convince the subject that they, too, like dirtbikes or tattoos, is that overly coercive? How about false information, like telling the subject that his buddy is ratting him out?        

  14. TC says:

    Thanks for the info on the polygrapher’s sexual orientation and hairstyle.  That added a great deal to the conversation.

  15. Paco says:

    Silver Fox- I would agree that “any criminal lawyer worth his salt, prosecution or defense, ought to be against obtaining false confessions” however, in today’s military sexually assault witch hunt environment, I think there are a number of people in the prosecution (to include SJAs) who will ignore concerns they (and in some cases their own experts) will have in a “confession” where a young military member who has been beaten down by the military to say “yes sir” makes a ‘confession” under the influence of their perceived superior.  Typically, accused’s are given false information and false definitions by a mall cop who believes he is a FBI agent, leading them to think I must have “accidentally raped her” however there is not thing as accidentaly rape.  There is a listing of cases where young military members supposedly only have sexual intercourse because the power they perceived the partner had over them, but somehow we believe that a young military member won’t say something because someone he believes has power over them is telling him what he did.

  16. Charlie Gittins says:

    TC:  Actually, how scary she looked was a central theme of my argument why my client would falsely confess to get himself out of the room with her.  So, yeah, it mattered. 

  17. John says:

    Calling someone a “butch dyke” based on their hairstyle and “[NCIS] are poseurs pretending to be cops.”  And from another commenter, “mall cop who believes he is a FBI agent.” 
    Sometimes its hard to believe that this is blog for legal professionals.

  18. TC says:

    I didn’t realize you were employing the classic “gays are scary” defense. I apologize for doubting you. Please go on spreading your bigotry.

  19. Stackhouse says:

    Think prejudices of the jury don’t come into play during the conduct of a case…you’re fooling your enlightened self. And if I’m representing a client and an issue of prejudice can work in my client’s interest I will use it to get to the jury if I can…every time.  We finished a case earlier this year where the sexual orientation of the complaining witness was an issue – we were going to use it to our advantage, the judge stopped us pretrial.  Then the government later wanted to use it to their advantage, we got the judge to stop it pretrial.  You don’t think prejudice is an issue in every trial – go look at our prison population of just the racial makeup of the exonerated on the innocence project website – out of 317 exonerates, over 2/3 (African American, Latino, Asian American).  Someone please say that we prosecute more minorities so that’s why the numbers are higher.
    As far as false confessions go – rejecting the reality that it happens way too often by denigrating particular cases as the exception is dangerous.  The presumption publically and by prosecutors (painted with a broad brush) is that the confession is solid.  Usually, that’s based upon a self-perception that – “I wouldn’t confess if I didn’t do it” – and nothing else.  The attitude should be – prove to me the confession is true and unforced.  Video recording from the beginning is a start.  Why do law enforcement organizations go kicking and screaming into acceptance of video?  Because, I suspect, they will have to seriously change the way they do business.
    Why is it important – because as many of the folks who post on this blog actually prosecute for a short period in a full 20 year career and those that leave early rarely run for DA in killing county – consider the case of Mr. Brown from NC who was living on death row for 30 years after confession to Murder/Rape of a child in the great state of North Carolina who was prosecuted by a career prosecutor — who had decades of experience litigating cases:
    After the two men (Brown and McCollum) were exonerated last week, a New York Times reporter interviewed the retired prosecuting District attorney – a man once named America’s “Deadliest DA.” During the interview and in context of the exonerations, the reporter asked the retired DA to comment on the allegation by his successor that he ran his office like a “bully” He responded: “Well, let’s say, if I was a bully, he is a pussy. How about that?”
    (Any MilJus shops run by bullies in the military?  Any CA’s push cases like a bully in the military)The men he prosecuted were mentally challenged (IQs of 60’s and 50’s) – of them he says: “When we tried those cases, every time they would bring in shrinks to talk about how retarded they were,” he said. “It went on and on and on, blah-blah-blah.”
    (Any TC, MOJO, COJ cry BS on requests for 706 boards or expert consultants for the defense in the area of mental health with a roll of the eyes)They were exonerated based upon, among other things: (1) Brady Violations (exculpatory evidence not turned over to the defense), (2) coerced confessions, and (3) a serial rapist lived 100 yards from the victim and was arrested the week after the exonerates were arrested for raping and killing a girl in similar ways and a cigarette with his DNA was found at the scene of the exonerates crime scene (the same retired DA handled both trials.)
    (Ever had a TC/MOJO/CJ use their “opinion” as to whether something is relevant or not, 8 hour interrogations every happen by CID/OSI/NCIS, keystone cops investigating and not collecting all the evidence or not turning it over the TCs because they are “independent” and make the call, TCs too lazy to go to the CID/OSI/NCIS office and look at the entire file for Brady Evidence…happens routinely…but yes, I know none of you on this blog have offended, so present company excluded) The retired DA’s response to the exonerations: “I thought the [successor] D.A. just threw up his hands and capitulated, and the judge didn’t have any choice but to do what he did. No question about it, absolutely they are guilty.”Yea – we should continue to execute people in America

  20. DCGoneGalt says:

    Stackhouse:  I think the exonerations of the Innocence Project reflect the high number of non-white defendants who are not provided adequate defense at trial.  This is due mostly to poverty rates leading more (% wise) non-white defendants to utilize underfunded and under qualified public defenders.  That doesn’t even address the sentencing disparity issue.  As for exploiting stereotypes, have at it if it benefits the client.  IMO the government is an equal opportunity offender in exploiting these issues for advantage.  But the language used to the NCIS agent is not needed.  If the investigation was over the line then say so.  If someone’s personal actions are relevant then those actions are fair game for comment but not seeing how the agents hair/appearance is relevant.  

  21. stewie says:

    It’s some of that DC, but some of it is also simply that some defendants are treated differently than others similarly situated based on things like race and gender or certainly sexual identity (if it is known). Having an AA President did not solve all of our racial woes, and not all of our racial woes are the fault of minorities.
    Look at Charlie’s fairly ridiculous butch dyke comment. People still feel free to make those kind of comments without the slightest concern about how it makes them look or the impact it has on others. Plenty of panel members think like him. Plenty of panel members thinking “no one would ever confess to something they didn’t do.” Yet we know it happens a not insignificant amount of time. Thus, we have something that will be very powerful if presented to a factfinder, but we also know it has a significant enough of an error rate that we have to treat it differently than other evidence, requiring corroboration.
    So Silver Fox can drop a snide bomb on the idea that “slight corroboration” is meaningless, but the very fact that we require it shows how skeptical we are of just relying on a confession with nothing else. I also think the legal world is slowly but surely turning away from “slight corroboration” to something a little more substantive. There are other definitions out there for what it means to corroborate that tie it a little more closely to the actual thing being confessed.
    How we got to “bull dykes” and racial prejudices from a comment about confessions and corroboration is a mystery for future humans that may never be solved.

  22. Charlie Gittins says:

    John and TC:  You guys are clueless.  Please send me your CV TO CGITTINS@AOL.COM, so I can asses your experience.  You guys sound like a couple of just out of law school babies who have no clue.   I have been doing this work for 25 years.  John:  I made an argument that was based on the witnesses appearance and her demeanor, questions, and attitude.  That was my job. I didn’t ask her to wear a crew cut and I didn’t accuse her of being homosexual, despite the fact that she clearly was.   And she was trying to overcome my client’s statements of innocence to convict him, even though he denied non-consesual sex.  And, John, whatever your last name is — you post anonymously because you are a coward — I am pretty sure I was a legal professional before you graduated high school.  Please disabuse me  (and everyone on this site of your bonafides) and of my beliefs based on  your comnments.

  23. Charlie Gittins says:

    I agree with EVERYtHING Phil Stackhouse says.  Yeah, I am a dinosaur and not PC, but my outcomes and verdicts speak for themselves.  A few of which I had Phil sitting next to me.  KMA.

  24. Charlie Gittins says:

    Stewie:  As much as my existence may offend you, I have enough experience to understand just how disingenuous the process is.  Military law enforcement lie to accused because they can and military accuseds are largely unaware of their rights and talk to the confession collectors.  Anyone holding up military law enforcement as a model is a stupid fuck.  

  25. stewie says:

    Your existence doesn’t offend me, I don’t know or care enough about you to be offended all that much by your existence…it’s 1005th on my list.  I’m sure you have a lot of experience in the military justice system. I’m sure and it is clear that there is much technically folks can learn from you, including myself about the entire MJ process inside and outside the courtroom. I’m also sure that if you were any more one-sided you’d need shoes on your elbows.
    Having said that, longevity means nothing. At some point, all of us will have been doing this since “before someone graduated high school.” so what? That fact alone doesn’t mean much. A newbie can be right where an old fogie can be wrong, or vice versa.
    Maybe it’s just a persona on here, and in real life you are quite different. I don’t know. I’ll say, a little humility wouldn’t hurt ya every once in awhile, neither would some miniscule version of a filter. And quite frankly, when you use terms like “bull dyke” on a “military” blog and clearly have an issue with homosexuals in a time when gay servicemembers are now openly serving, well, get over it. Times have changed, and to paraphrase the bartender in “Anchorman” “gay people can DO things now.”

  26. TC says:

    It’s pretty clear when you wrote “So, I just made it look like the butch dyke (she had a crew cut)  polygrapher extracted a false confession after 8 hours of interrogation” you weren’t making a comment about how you subtly manipulated the members’ biases.  You were just demonstrating your own prejudice.  Which is something you’ve done on this blog time and time again.  Go ahead and chalk it up to just not being PC.  I think your true colors come through pretty loud and clear.

  27. President Camacho says:

  28. k fischer says:

    “If you were any more one-sided you’d need shoes on your elbows.”

    Stewie, if that was your attempt at a southern colloquialism, then you failed miserably.  I mean, how could you even size shoes for your elbows?  Wouldn’t it make more sense to just buy a pair of elbow pads?  
    Try this on for size: “Charlie is so one-sided that when he was four years old, he only played with Weebles.”   (That joke works using my Chris Rock voice, too.)

  29. stewie says:

    Southern? No. And you ever tried to walk on elbow pads? Shoes make more sense.
    As for your joke, Weebles aren’t one-sided, that’s literally the point, they wobble but they don’t fall down on any side.
    You’ve created the anti-one-sided colloquialism.

  30. charlie gittins says:

    You kids are dating yourselves.  Weebles?  I was in high school by then.  12″ GI Joe, now you have something to lock on to.  My mother sold all my GI joe stuff and I think she did pretty well because I had a platoon of figures, Jet pilot, Green Beret, Frogman, Nazi soldier, British soldier, pilot in orange flight suit, astronaut in silver spacesuit and it goes on and on.  Weebles?  I have no knowledge other than I saw commercials.