In a published decision in United States v. Latour, 75 M.J. 723, No. 201600114 (N.M. Ct. Crim. App, Jul 12, 2016) (link to slip op.), a three-judge panel of the NMCCA rejects a Government appeal under Article 62 of a military judge’s ruling that excluded the accused’s admissions for lack of corroboration.

Confessions, and the corroboration rule (Mil. R. Evid. 304(c)), were our #10 Military Justice Story of 2015, and the corroboration rule was changed (significantly relaxed) in this year’s amendments to the Manual for Courts-Martial. However, Latour involves the old rule because the accused was arraigned before the change.

The accused is charged with four specification of sexual assault. Two of those specification allege that he penetrated the alleged victim’s vulva with his penis and with his finger, both while she was incapable of consenting due to impairment by a drug, intoxicant, or other similar substance.

The admissions requiring corroboration are the accused’s statement to the Naval Criminal Investigative Service in which he admitted to the penetrations but asserted that they were consensual, and the accused’s text message to the alleged victim that, “[w]e made whoopy lol.” Slip op. at 2-3 (marks in original).

However, “no witness, including [the alleged victim], testified to observations, physical sensations, or injuries that corroborated sexual activity. Investigators found no physical evidence of sexual activity, whether DNA or a condom wrapper.” Slip op. at 13. Accordingly, the military judge prohibited the prosecution from introducing the admissions, leading to the appeal.

In affirming the military judge’s ruling, the CCA rejects three arguments advanced by the Government.

First, the Government asserted that the accused waived the requirement of corroboration by failing to object prior to entering pleas (as is required by Mil. R. Evid. 304(f)(1)). Noting that the rule allows the military judge to excuse such a failure for good cause, the CCA scolds the Government for waiting until appeal to claim waiver:

Importantly, the Government bears some responsibility for the absence of any discussion of timeliness in the record. Trial counsel did not raise the issue when opposing suppression of the appellee’s admission. The Government did not invoke MIL. R. EVID. 304(f)(1) until its interlocutory appeal. . . . Additionally, the appellee is disadvantaged by the record’s silence as to law and fact. Had the Government demanded the MJ articulate the good cause found for considering the appellee’s tardy objections, there would be a clearer, more detailed record to review. Nevertheless, nothing in the record before us rebuts our presumption that the MJ correctly applied MIL. R. EVID. 304(f)(1). Under these circumstances, we find that the Government has failed to demonstrate the MJ abused his discretion in considering the objections.

Slip op. at 4.

Next, the Government asserted that the text message did not require corroboration because it was a “statement outside an interrogation context [and] is admissible as a statement by a party-opponent pursuant to MIL. R. EVID. 801(d)(2)(A).” Slip op. at 5. Rejecting three cases offered by the Government as supporting the proposition that corroboration is not required for a statement made outside of an interrogation, the CCA concludes that:

The argument and case law presented in support of limiting the corroboration requirement to confessions and admissions elicited in law enforcement interrogations are neither binding nor persuasive. We find no legal basis for ignoring the plain language of MIL. R. EVID. 304 in favor of a discriminatory application of its corroboration requirement. Thus we find no error in this MJ’s decision to apply MIL. R. EVID. 304(c)(1) to the appellee’s texted admission to [the alleged victim] and require corroboration.

Slip op. at 8 (citation omitted).

Finally, the Government asserted that the military judge required too much corroboration. But the CCA characterizes the military judge’s as “mining the evidence for corroboration” and reproduces the following portions from the military judge’s ruling:

The MJ then documented his search for evidence corroborating the method of sexual assault.

The Court asked if there was, and provided the [G]overnment the opportunity to provide any, evidence of sexual activity or penetration to include vaginal soreness, seminal fluids in her vagina, condom wrapper, used condom, DNA, wet spot on sheets, seeing the accused naked, seeing the accused lying in the bed, testimony to the effect of ‘a woman knows her body and knows when she has experienced sexual intercourse and that she experienced sex’ or any other independent evidence that corroborates the essential facts admitted.

The MJ:

queried the [G]overnment to provide any additional evidence beyond the admissions of the accused and noted there was no independent evidence any [sic] sexual activity from either [the alleged victim] or any other witness. The only somewhat corroborating evidence as to anything taking place was the evidence that the accused was in the room of [the alleged victim], that [the alleged victim] woke up naked from the waist down the following morning and that [the alleged victim] saw the accused leaving her room.

Slip op. at 11 (quoting record).

Based on the absence of any evidence – whether physical evidence witness observations, sensations experienced by the alleged victim, injuries, or DNA – that would corroborate the accused’s admissions to sexual activity, the CCA finds that the military judge did not require too much corroboration.

Presumably (unless CAAF reverses), this absence of evidence will cause the military judge to enter a finding of not guilty to the two specifications at issue. See R.C.M. 917.

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