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:




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.

19 Responses to “The (old) corroboration rule returns to CAAF”

  1. Went to a real law school says:

    Zach, confessions are the least reliable form of proof known to the law?  You been drinkin’ that coolaid, man.  Maybe even some purple drank.  Perhaps you should stop inserting your own far flung asides into what’s supposed to be objective legal analysis.

  2. Zachary D Spilman says:

    As I wrote in our #10 Military Justice Story of 2015:

    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).

  3. DCGoneGalt says:

    Zach:  I understand false confessions.  Investigators can manipulate, people can be weak or dumb . . . But come on . . . The least reliable form of proof?  A confession has to be compared with the rest of the evidence but a videotaped statement 100% against interest isn’t generally less reliable than most of the other testimony that occurs during a trial.
    As I said on one of your Adams posts:

    Mr. Spilman: I understand your point and have seen the literature demonstrating false confessions exist, their known causes, and their prevalence.   However, even after having read this material, I agree with Jolly Roger that the corroboration requirement is necessary in large part because a confession is “case closed” evidence and therefore the government must demonstrate some form of independent evidence to show the confession is not the product of an oppressive interrogation or the product of a troubled mind.  If a confession is more unreliable than eyewitness testimony then I certainly have not seen that research material. I certainly believe that the main historical impetus for the rule of corroboration was to prevent governmental abuse in the interrogation process but, even though false confessions and government abuse exist today, I do not believe they remain the primary factor for advocating the retention of the rule.  I believe Jolly Roger correctly points out that most people, including me, give much more weight to a confession than they do any other form of evidence unless there is a great amount of evidence to undercut its reliability.

    CAAFLOG – US v Adams – 27 Apr 2015

  4. Zachary D Spilman says:

    I understand, DCGoneGalt,

    that most people, including [you], give much more weight to a confession than they do any other form of evidence 

    but the law doesn’t. 

    The law knows confessions are unreliable, and so requires corroboration.

  5. stewie says:

    No, the law recognizes that false confessions are a possibility and errs on the side of requiring corroboration as a safety net. That’s not remotely the same thing as your argument that it’s because confessions are the least reliable evidence. The law recognizes that confessions are super relevant and can overwhelm all over evidence, so it introduces an extra protection, just in case.

  6. Tami a/k/a Princess Leia says:

    Uncorroborated confessions are per se unreliable, hence the requirement for corroboration by some kind of independent evidence.  Historically the dispute has been over how much independent evidence is enough, and what “elements” of a confession require corroboration.  The newer rule lowers the bar on both, which I greatly dislike.

  7. stewie says:

    The requirement for corroboration is not because uncorroborated confessions are “per se unreliable.” The amount of corroboration required has been historically, other than a brief period, very very very minimal. That would not logically make any sense at all if uncorroborated confessions are “per se unreliable” or “the least reliable evidence.”
    We don’t (generally) let in propensity evidence either. We do that because it’s super relevant, and because we have chosen to err on the side of not convicting the innocent, not because it’s unreliable. Same with confessions. Most confessions are not false, but some are, so we err on the side of making sure as few false confessions make it in as possible, and one way you do that is requiring at least some amount of corroboration.
    To be the least reliable or per se unreliable (which really goes even farther than Zach does) would be to say that more often than not, it’s not true. And thus we’d historically have a much higher bar to admission than we have.

  8. Dew-Process says:

    For those with a scholarly interest in this topic, e.g., counsel in Jones, the issue of corroboration and confessions has frequently bedeviled military jurisprudence.  For example, in 2003, the Military Law Review published an article by then MAJ Russell Miller entitled Wrestling With MRE 304(G): The Struggle to Apply the Corroboration Rule, 178 Mil. L. Rev. 1 (2003), available HERE.
    Then, in 2011, the Air Force Law Review published an article by Col. J. Wesley Moore, entitled: The Corroboration Quandary: A Historical Overview of the Interpretation of MRE 304(g), 67 AF L. Rev. 89 (2011), available HERE.
    More recently, a very comprehensive article by Prof. Richard Leo et al., entitled: PROMOTING ACCURACY IN THE USE OF CONFESSION EVIDENCE: AN ARGUMENT FOR PRETRIAL RELIABILITY ASSESSMENTS TO PREVENT WRONGFUL CONVICTIONS, [80 pages], delves into the topic at length and is available HERE.  It’s definitely worth the read for both trial and appellate litigators.
    The Confrontation Clause issue (Issue I) is equally as interesting because SCOTUS has not addressed this (other than in dicta) under its Crawford – Confrontation Clause line of cases.

  9. k fischer says:

    If you are referring to an unrecorded interview by OSI or CID where the Accused “confessed,” then I agree that a confession is the least reliable form of proof known to the law.  Or perhaps where the SVP argues the Accused confessed when he apologized after being accused on a pretext phone call of rape, then I would agree that it is the least reliable form of proof.
    But, you seem to say that if something by law needs to have corroboration, then it is the least reliable form of proof.  I might agree particularly where in the past, a sexual assault allegation needed corroboration before the accused could be convicted.  Because a sexual assault allegation is the least reliable form of proof.

  10. DCGoneGalt says:

    k fischer:  An allegation is part of the proof of a case.  Standing alone it may be worthless but the facts corroborating the allegation are the meat of the case.  A confession is also part of the proof of a case case.  However, it is the meat of the case.  Standing alone, it is not worthless because it is wholly against interest. 
    Confession meat is a medium rare 36 oz porterhouse with the bone in.

  11. Former DC says:

    If a confession is not inherently unreliable, the many safeguards we inject throughout the criminal justice system, both military and civilian, would be unnecessary.  If there was no possibility that someone could confess falsely, whether by design (confessing to protect someone else), by accident (thought they did something, but didn’t), or coercion (Brown v. Mississippi – the suspects were beaten, “but not too much for a negro), then these safeguards would be unnecessary.
    Notice how many we have: the Miranda warnings, many jurisdictions demand all interrogations be recorded, iin the civilian courts a factual basis must be made under oath to support a plea of guilty (a form of confession), while n the military we have the providency inquiry, just to name a few. The US Supreme Court has long held:

    One line of our decisions establishes that criminal confessions and admissions of guilt require extrinsic corroboration…It is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused.  We observed in Smith v. United States, 348 U. S. 147348 U. S. 153, that the requirement of corroboration is rooted 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.”  In Opper v. United States, 348 U. S. 84348 U. S. 89-90, we elaborated the reasons for the requirement: “In our country, the doubt persists that the zeal of the agencies of prosecution to protect the peace, the self-interest of the accomplice, the maliciousness of an enemy or the aberration or weakness of the accused under the strain of suspicion may tinge or warp the facts of the confession. Admissions, retold at a trial, are much like hearsay, that is, statements not made at the pending trial. They had neither the compulsion of the oath nor the test of cross-examination.”

    Wong Sun v. U.S., 371 U.S. 471 (1963).
    Whatever a jury/members panel may think of a confession, the law considers them inherently unreliable and, unlike every other kind of evidence, insufficient to sustain a conviction alone.
    Zack is absolutely correct.  Confessions are the least reliable form of proof in the law.

  12. Vulture says:

    Seeing the news cycle since yesterday and this morning has a US Senator going Adrian Brody on a reporter and a White House saying, “Look, he admitted it.”  At the same time there is the comparison to the Access Hollywood tape and people shaking their heads.  Or maybe they are just pointing their finger because of this picture from the USO tour.  Maybe he’s gesturing a grope or maybe that’s an inch and a half of composite plate and high density Kevlar mesh appealing to Al Frankin’s particular brand of sarcasm.  To me, it’s more disturbing to see that Lindy England look on his face, so its a Rorschach test regardless of who’s stopping the buck now.  Because we are hearing over and over that he admitted it and others are saying  we need an investigation  revelations might differ.
    Point being that it may not be right to say that confessions are the weakest form of proof in law.  But now that we are seeing the question play out under these stakes it compels a clarifying discussion.  It seems that the law got its skepticism right.

  13. Tami a/k/a Princess Leia says:

    I’m glad Vulture brought up the Al Franken case:  Under the old corroboration rules, the picture of him doing the “honk, honk” move might have been enough to corroborate an admission/confession to abusive sexual contact, as there is nothing definitive in the picture that he actually touches her breasts.  But on the other hand, the bar for corroboration, even under the old standard, was pretty low.  Either way, further investigation is necessary to establish a touching occurred.
    Under the new standard, the picture would definitely be admissible to corroborate a confession/admission and no additional investigation would be necessary to establish a touching actually occurred.

  14. stewie says:

    Former DC you are conflating two very different things. Reliable does not mean foolproof. It just means reliable. So saying something is inherently unreliable because it isn’t foolproof is like saying something is a failing grade because it isn’t an A.
    Yes, there is a possibility. If we had a system where we wanted all guilty men in prison over erring on the side of making sure no innocent person was in prison, we’d be just fine with confessions…because, most of the time, they are legit. They aren’t inherently unreliable. BUT we err on the side of no innocent person in prison, and they can be untrue. So we require corroboration.
    Let’s put this a different way. We know through plenty of studies that eyewitness testimony is inaccurate roughly half of the time. I do not believe there is any evidence to suggest confessions are remotely inaccurate to that extent. If someone has some please point it out to me. So, to my mind, confessions are at LEAST as reliable as eyewitness testimony.

  15. stewie says:

    Second point, Former DC your link explains another reason why confessions need corroboration and it isn’t because they are reliable. They are no different (in this narrow sense) than any other hearsay testimony in that they are not tested by cross-examination, and we like all testimony, including by the accused, to be tested by cross-examination if we can. But we can’t compel the accused to testify, so how do we replicate testing by cross-examination? We require corroboration. BUT we trust confessions so much, we make that corroboration barely anything at all. Again, if we TRULY believed that confessions were the least reliable form of evidence, we would require more than the bare minimal corroboration we’ve required for the vast majority of legal history in this area.

  16. Philip D. Cave says:

    Opper is the best case on corroboration?

    Whether the differences in quantum and type of independent proof are in principle or of expression is difficult to determine. Each case has its own facts admitted and its own corroborative evidence, which leads to patent individualization of the opinions. However, we think the better rule to be that the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti. It is necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement. 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. Smith v. United States, post, p. 147. 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, at 893.  How should that language be interpreted?  I know that military and federal courts have moved down from “substantial” to other lesser formulations, but is that a right interpretation of Opper’s standard?  See, e.g., Smith v. United States, 348 U.S. 147.

  17. Zachary D Spilman says:

    Again, if we TRULY believed that confessions were the least reliable form of evidence, we would require more than the bare minimal corroboration we’ve required

    Considering that confessions are the only kind of evidence that requires corroboration – however slight – I stand behind my least reliable assessment.  

  18. stewie says:

    1. That’s nonresponsive. It’s not even an argument.
    2. You haven’t remotely established that requiring corroboration equates to least reliable.
    3. Propensity evidence (generally) doesn’t come in regardless of corroboration. Why isn’t that even less reliable?
    Your if then is missing the then.

  19. Joseph Wilkinson says:

    ‘course in most cases we’re guessing about what really happened in a criminal case, but perhaps we could get some useful data from the Innocence Project:
    This suggests that 28% of the persons cleared by DNA evidence gave false confessions; but 71% involved eyewitness identification.
    This person looked through the cases and says that 57% were rape cases (I haven’t checked the figures myself – a little rushed right now).
    That suggests that eyewitness identification and “believe the victim” are less reliable…or, at least, more commonly pernicious…than confessions are.   Not that it leaves you certain-sure about any traditional method of proof.