A confession is the only form of proof that requires corroboration. Unlike eyewitness identification, circumstantial evidence, forensics, or the inconsistent testimony of a biased and prejudiced witness, an accused cannot be convicted on his confession alone. Put simply, a confession is the least reliable form of proof known to the law. “In the United States, our concept of justice that finds no man guilty until proven has led our state and federal courts generally to refuse conviction on testimony concerning confessions of the accused not made by him at the trial of his case.” Opper v. United States, 348 U.S. 84, 89 (1954).
Military law has long distrusted confessions, recognizing the coercive power of military authority. The warning requirement of Article 31(b) – our #3 Military Justice Story of 2014 – predated the Supreme Court’s requirement for a similar warning in civilian contexts in Miranda v. Arizona, 384 U.S. 436 (1966), and was cited by Chief Justice Warren as a factor supporting the Court’s decision in that case. Further, the Manual for Courts-Martial has long included a positive requirement for corroboration of a confession, with such a requirement appearing in Manuals published long before enactment of the UCMJ. Today, the Manual commands:
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.
Military Rule of Evidence 304(c)(1).
This Rule suffered from apparent toothlessness, as CAAF’s precedent held that “the corroborating evidence must raise only an inference of truth as to the essential facts admitted.” United States v. Cottrill, 45 M.J. 485, 489 (C.A.A.F. 1997). However, in 2015 CAAF breathed new life into the corroboration requirement, explaining that “if sufficient corroborating evidence of an essential fact is not provided, then the uncorroborated fact is not admissible and the military judge must excise it from the confession.” United States v. Adams, 74 M.J. 137, 140 (C.A.A.F. 2015) (emphases added) (CAAFlog case page). As a result, the court in Adams reversed the appellant’s conviction of larceny that was based upon his written confession to military investigators that he stole cocaine from a drug dealer, using a S&W handgun, near a local WalMart, because “virtually none of the [essential] facts” were corroborated. Adams, 74 M.J. at 141.
CAAF’s decision in Adams has the potential to significantly impact military trial practice, but that isn’t the only reason confessions earned a spot on our Top Ten list. After CAAF acted, so did Congress.
In the wake of CAAF’s decision in Adams, Congress added the following provision to the National Defense authorization Act for Fiscal Year 2016:
To the extent the President considers practicable, the President shall modify Rule 304(c) of the Military Rules of Evidence to conform to the rules governing the admissibility of the corroboration of admissions and confessions in the trial of criminal cases in the United States district courts.
Pub. L. No. 114-92, § 545. CAAF’s decision in Adams was ultimately just a matter of regulatory interpretation, as the corroboration requirement in Military Rule of Evidence 304(c) exists because of the rulemaking authority of the President of the United States granted to him by Congress in Article 36:
Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not, except as provided in chapter 47A of this title, be contrary to or inconsistent with this chapter.
Article 36(a), UCMJ. Yet the purpose of the FY16 NDAA provision is somewhat uncertain, as it merely echoes the existing requirement that the court-martial corroboration rule (like every other rule) conform to the rule used in the district courts so far as is practicable. Congress did not use its constitutional power to change the corroboration rule, but rather instructed the President to do something that he has (presumably) already done.
If the President now makes a significant change to the corroboration rule, it will be interesting to see how (or even if) that change is justified. Moreover, if such a change is to the detriment of an accused, it will be interesting to see how the courts analyze the appropriateness of the change.
Combined, CAAF’s decision in Adams and Congress’ action in the NDAA make confessions our #10 Military Justice Story of 2015.