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A recent unpublished decision by a three-judge panel of the Navy-Marine Corps CCA, in United States v. Green, No. 201300276 (N-M. Ct.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).