Yesterday CAAF granted review in this Army case:
No. 17-0608/AR. U.S. v. Randy E. Jones. CCA 20150370. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
I. WHETHER ADMISSION OF AN ALLEGED CO-CONSPIRATOR’S CONFESSION TO LAW ENFORCEMENT VIOLATED M.R.E. 801(d)(2)(E).
II. WHETHER ADMISSION OF THE SAME CONFESSION VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONTATION.
III. WHETHER USE OF THE CONFESSION TO CORROBORATE OTHERWISE UNSUPPORTED ESSENTIAL ELEMENTS IN APPELLANT’S OWN CONFESSION VIOLATED M.R.E. 304(g) AND UNITED STATES v. ADAMS, 74 M.J. 137 (C.A.A.F. 2015).
Briefs will be filed under Rule 25.
There’s no opinion on the CCA’s website, but between the case number and the citation to Mil. R. Evid. 304(g) (restyled as Mil. R. Evid. 304(c) in 2013), the case clearly involves the old corroboration rule.
Confessions – the least reliable form of proof known to the law – were our #10 Military Justice Story of 2015, after CAAF breathed new life into the corroboration requirement with its decision in United States v. Adams, 74 M.J. 137, 140 (C.A.A.F. 2015) (CAAFlog case page). The Joint Service Committee quickly proposed changing the rule to restore the corroboration requirement to its formerly toothless status, and President Obama promulgated that change just 13 months after CAAF’s decision in Adams.
For comparison, President Obama didn’t promulgate a Part IV of the MCM addressing the 2012 changes to Article 120 until September 16, 2016 – 51 months after the statute’s effective date.
Mil. R. Evid. 801(d)(2)(E) involves statements made by a “co-conspirator during and in furtherance of the conspiracy,” like discussions of the plan, pitches to recruit other conspirators, and confessions to law enforcement.