ON "VAGUE LATIN PHRASES" AND CRIMINAL CONFESSIONS: CORPUS DELICTI, TRUSTWORTHINESS AND CORROBORATION, AND THE FEDERAL RULES OF EVIDENCE.
INTRODUCTION 106
I. THE HISTORY OF THE CORPUS DELICTI RULE AND ITS
APPLICATION IN FEDERAL AND STATE COURTS 107
A. Corpus Delicti in Federal Courts 108
B. Corpus Delicti in State Courts 111
II. UNCERTAINTIES AND CRITICISMS OF THE CORPUS
DELICTI RULE 112
III. CORROBORATION AND TRUSTWORTHINESS, AND THE
FEDERAL RULES OF EVIDENCE 114
IV. ANALYSIS AND SUGGESTIONS FOR CLARIFICATION 117
CONCLUSION 125
INTRODUCTION
For centuries, a criminal defendant could not be convicted based solely on that individual's confession. Instead, independent confirmation that a crime had been committed was required by what is called the corpus delicti rule. The corpus delicti rule, however, has been the subject of various criticisms--substantive, procedural, and otherwise. In retaining the rule, one court described corpus delicti as a "vague Latin phrase[] that can easily be misinterpreted and misapplied." (1) Nearly seventy years ago, the United States Supreme Court replaced the traditional view of the corpus delicti rule with a trustworthiness-and-corroboration requirement. And just fifty years ago, the Federal Rules of Evidence included the trustworthiness-and-corroboration requirement in one rule, but conspicuously left out this requirement in another rule. Case law since that time generally provides that federal courts require a showing of trustworthiness and corroboration for confessions.
Part I of this Article first addresses the history of the corpus delicti rule and its application in federal and state courts. Part II mentions a variety of uncertainties and criticisms of the corpus delicti rule and the adoption of the trustworthiness-and-corroboration requirement by the United States Supreme Court in 1954. Part III addresses how the Federal Rules of Evidence, adopted in 1975, address the issue. Part IV shows that federal courts are applying the trustworthiness-and-corroboration requirement adopted by the United States Supreme Court, even though the requirement is not contained in a key Federal Rule of Evidence. The Article concludes by discussing options, including an amendment to the Federal Rules of Evidence, that would clarify what is required to admit into evidence a confession by a criminal defendant. Our aim in this Article is not to provide a single unified theory about what standard should apply; instead, we offer suggestions about how current uncertainty about what is required could be eliminated. In this way, litigants, advocates, and courts can have clarity and predictability about what is required to admit evidence of a confession, avoiding uncertainty about a "vague Latin phrase[] that can easily be misinterpreted and misapplied." (2)
I. THE HISTORY OF THE CORPUS DELICTI RULE AND ITS APPLICATION IN FEDERAL AND STATE COURTS
The rule of corpus delicti--which translates to the "body of the crime"--has been a part of criminal law in England and the United States for centuries. (3) The corpus delicti rule has ancient roots, first appearing more than "three hundred years ago in England to prevent the conviction of those who confessed to nonexistent crimes as a result of coercion or mental illness." (4) Although described in various ways, the traditional view of the rule "bars admission in evidence of a criminal defendant's extrajudicial confession unless the prosecution shows, by evidence independent of the confession, that the crime charged was committed by someone." (5) More practically, to admit a confession, the corpus delicti rule "requires the prosecution to prove the corpus delicti (the 'body of a crime') through evidence other than the defendant's out-of-court confession." (6)
Commentators in both England and the United States have described the corpus delicti rule as seeking to prevent criminal convictions--specifically murder convictions--and resulting consequences (including executions) where the purported murder victim later resurfaced very much alive. (7)
A. CORPUS DELICTI IN FEDERAL COURTS
The United States Supreme Court first mentioned the corpus delicti rule in 1814. Justice Joseph Story, writing separately in United States v. 1,960 Bags of Coffee, (8) a forfeiture case, noted in a dated dialect that it had been argued that admitting the rule that the forfeiture of goods and chattels in general relates back to the time of conviction, yet it is inapplicable to a case where a specific thing is declared forfeited by law, for in such case the corpus delicti attaches to the thing in whose hands soever it may come. (9)
In doing so, Justice Story defended and repeated verbatim what he had written as Circuit Justice in 1812. (10) But corpus delicti appeared even earlier in the states. In 1797, for example, the North Carolina supreme court tersely noted that "a naked confession, unattended with circumstances, is not sufficient." (11)
In the 140 years that followed the 1814 decision in 1,960 Bags of Coffee, the United States Supreme Court cited the corpus delicti rule nearly forty times. (12) During that time, other federal courts have cited the corpus delicti rule hundreds of times. (13) Judge Learned Hand, a critic of the rule, stated more than a century ago that "there has been a very general concordance of judicial opinion in the United States that some sort of corroboration of a confession is necessary to conviction, and this concordance has extended to federal courts as well as elsewhere." (14)
In 1941, the Supreme Court in Warszower v. United States observed that a defendant may not be convicted based on an uncorroborated confession alone, adding that "[t]he rule requiring corroboration of confessions protects the administration of the criminal law against errors in convictions based upon untrue confessions alone." (15) In two 1954 cases, Opper v. United States (16) and Smith v. United States, (17) the Supreme Court appeared to move away from the traditional application of the corpus delicti rule, focusing instead on corroboration.
Citing Warszower and Wigmore on Evidence, Opper noted that "[i]n 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." (18) Opper noted that American courts had "gone further than... the common law of England" by requiring corroboration of such a confession:
[In England] the courts have been hesitant to lay down a rule that an uncorroborated extrajudicial confession may not send an accused to prison or to death. 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. (19)
As for the nature of the corroboration required to support a conviction of a defendant who has confessed, Opper stepped away from the corpus delicti rule:
[W]e 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. (20)
Opper added that 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." (21)
Opper declared this trustworthiness-and-corroboration requirement applied with equal force to "a strict confession"--meaning the "complete and conscious admission of guilt"--as well as "statements of the accused out of court that show essential elements of the crime." (22) Smith appeared to narrow this latter point to "at least where, as in this case, the admission is made after the fact to an official charged with investigating the possibility of wrongdoing, and the statement embraces an element vital to the Government's case." (23)
Opper rejected the argument that the trustworthiness-and-corroboration requirement should be limited only to inculpatory statements and not applicable to exculpatory statements, "that is, those [statements] that explain actions rather than admit guilt." (24) "We conclude that exculpatory statements... may not differ from other admissions of incriminating facts." (25)
Following Opper and Smith, federal courts replaced the traditional corpus delicti rule with one requiring independent evidence of trustworthiness and corroboration. (26) The difference between the two requirements has been summarized as follows: the corpus delicti rule requires "independent evidence that a crime has been committed," while the trustworthiness-and-corroboration standard required "independent evidence that the confession is trustworthy." (27)
B. CORPUS DELICTI IN STATE COURTS
The corpus delicti rule is also frequently discussed in state court cases. By some counts, all fifty states had adopted the corpus delicti rule by the mid-1980s. (28) Thousands of state appellate court opinions have cited the corpus delicti rule, more than four thousand times since the year 2000. (29) But the requirements necessary to satisfy corpus delicti can vary from state to state.
As in the federal courts, some state courts have stepped away from the traditional corpus delicti rule and looked, instead, at corroboration and trustworthiness. (30) A decade ago, several commentators observed "a noticeable trend in state courts away from the corpus delicti rule and towards adoption of the trustworthiness doctrine." (31) Other state courts have adopted a "modified trustworthiness standard. Under this standard, an extrajudicial confession or admission can support a conviction if the State introduces independent evidence that supports the trustworthiness of the confession, plus evidence that the harm or injury occurred." (32) Another jurisdiction retained the corpus delicti rule but recognized a "closely related crimes exception to strict application of" the rule. (33) Still other jurisdictions have rebuffed requests to reject the corpus delicti rule and have continued to apply it, often with an additional corroboration requirement. (34) These cases show that various jurisdictions use different standards in addressing evidence of a criminal defendant's confession.
II. UNCERTAINTIES AND CRITICISMS OF THE CORPUS DELICTI RULE
As shown in the state courts, various uncertainties surround the corpus delicti rule. What sort of corroboration is required? (35) Is it corroboration of the confession, that the crime occurred, that the defendant's out-of-court statement was reliable or trustworthy, or proof of the fact of injury or "body" of the crime? (36) How does corpus delicti apply when there is no "body" of the crime, as with conspiracy, attempt, and some financial crimes? (37) What is the standard of proof required to satisfy the corpus delicti rule, when authorities range from slight evidence, to substantial evidence, to a preponderance of the evidence, to clear and convincing evidence, to proof beyond a reasonable doubt? (38) Is the corpus delicti rule a common law part of substantive criminal law, (39) a procedural rule governing the admissibility of evidence, (40) or both? (41) Or is it something else? (42) Does the corpus delicti rule have to be satisfied before evidence is admitted or simply before the prosecution rests? (43) And, of course, what is the ongoing validity of the corpus delicti rule? As these authorities show, the corpus delicti rule not only varies from jurisdiction to jurisdiction, but is an ongoing source of confusion. (44)
Criticisms of the corpus delicti rule have been described as "typically" falling "into several broad categories." (45) Some critics claim the rule is overbroad, resulting in the suppression of reliable confessions. Others claim it is inadequate by failing to protect "even the most patently mentally ill or coerced defendant who confesses, however implausibly, to an actual crime." (46) But the most common criticism is that "modern constitutional confession doctrines have rendered the rule obsolete." (47) Critics arguing that the rule is obsolete observe that coerced and unreliable confessions have been "largely eliminated" by the "voluntariness doctrine and the Fifth Amendment protections of Miranda v. Arizona." (48)
The corpus delicti rule also has faced significant judicial criticism, particularly by courts that have rejected the rule. Courts that retain the rule have expressed concerns as well. More than a century ago, Judge Learned Hand cast doubt on whether the rule had "any substantial necessity in justice." (49) But he also doubted whether the rule should be jettisoned: "[W]e should not feel at liberty to disregard a principle so commonly accepted, merely because it seems to us that such evils as it corrects could be much more flexibly treated by the judge at trial." (50)
Both the corpus delicti rule and the Opper and Smith corroboration-and-trustworthiness requirement implicate what evidence may be admitted at trial. That certainly applies if both are viewed as procedural rules governing the admissibility of evidence. But it remains true even if both are parts of common law substantive criminal law. If the standard is not met, the jury should not be allowed to consider the confession. So how then--when addressing the admission of an extrajudicial confession--do the Federal Rules of Evidence treat either the corpus delicti rule or the Opper and Smith corroboration-and-trustworthiness requirement?
III. CORROBORATION AND TRUSTWORTHINESS, AND THE FEDERAL RULES OF EVIDENCE.
Promulgated in 1975, the Federal Rules of Evidence govern civil and criminal trials in federal courts. (51) They also have had a broad influence in the states; forty-four states have modeled their rules of evidence, at least in significant part, on the Federal Rules of Evidence. (52) As a result, the Federal Rules of Evidence can serve as a proxy for how evidence rules apply in state court proceedings.
The Federal Rules of Evidence address the admissibility of a confession in two rules; which rule applies depends on how the confession is being used. One rule contains an express corroboration-and-trustworthiness requirement. The other does not.
Federal Rule of Evidence 804(b)(3) ("Statement Against Interest") contains a corroboration-and-trustworthiness requirement. (53) Rule 804(b)(3) is an exception to the rule against hearsay, applicable only when a declarant is unavailable to testify (such as when a criminal defendant exercises his or her Fifth Amendment right not to testify). (54) When those conditions are met, Rule 804(b)(3) states the following evidence is not excluded by the rule against hearsay:
(3) Statement Against Interest. A statement that a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability. (55)
Although neither Rule 804(b)(3) nor the original Advisory Committee Notes ("Committee Notes") mention Opper or Smith, (56) the Rule contains an express corroboration-and-trustworthiness requirement akin to what Opper and Smith adopted. (57) The Committee Notes for Rule 804 do not discuss why such a requirement was included; nor do they mention the corpus delicti rule. (58)
Rule 804(b)(3) and its corroboration-and-trustworthiness requirement are typically applied to confessions by third parties, not by the defendant in the criminal case being tried. (59) In other words, if A is on trial and B confesses that she was the one who committed the offense, B's hearsay confession is not admissible unless the court determines it is supported by "corroborating circumstances that clearly indicate its trustworthiness" showing that B did, in fact, commit the crime. (60) Stated differently, Rule 804(b)(3) prevents a third-party witness from exonerating a criminal defendant through a clearly fabricated confession.
From 1975 until 2010, this Rule 804(b)(3) corroboration-and-trustworthiness requirement only applied to exculpatory statements, given stated concerns about fabrication of evidence. (61) A 2010 amendment to Rule 804(b)(3) required corroboration and trustworthiness for all statements against penal interest offered in criminal cases, an amendment designed to prevent abuse and ensure reliability. (62) The Committee Notes accompanying that 2010 amendment state:
A number of courts have applied the corroborating circumstances requirement to declarations against penal interest offered by the prosecution, even though the text of the Rule did not so provide. A unitary approach to declarations against penal interest assures both the prosecution and the accused that the Rule will not be abused and that only reliable hearsay statements will be admitted under the exception. (63)
In contrast to Rule 804(b)(3), Federal Rule of Evidence 801(d)(2)(A) ("An Opposing Party's Statement") contains no corroboration-and-trustworthiness requirement for the admission of a criminal defendant's confession in that individual's criminal trial. (64) Rule 801(d)(2)(A) provides that a statement that was "offered against an opposing party and [that] was made by the party in an individual or representative capacity" is defined as not being hearsay and is admissible as "An Opposing Party's Statement" regardless of whether the declarant testifies. (65) Rule 801(d)(2)(A) is how a criminal defendant's statements, including confessions, often are admitted when offered by the prosecution against the defendant in a criminal prosecution. (66) Rule 801(d)(2)(A) does not reference the corpus delicti rule and does not include a trustworthiness-and-corroboration requirement for admission of such statements. (67)
When the Federal Rules of Evidence were promulgated in 1975, Rule 801 used the term "Admission by party-opponent" for what currently is "An Opposing Party's Statement." (68) The Committee Notes specifically stated that admissibility of a party's statement under Rule 801 included no guarantee of trustworthiness:
Admissions. Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule. No guarantee of trustworthiness is required in the case of an admission. The freedom which admissions have enjoyed from technical demands of searching for an assurance of trustworthiness in some against-interest circumstance, and from the restrictive influences of the opinion rule and the rule requiring firsthand knowledge, when taken with the apparently prevalent satisfaction with the results, calls for generous treatment of this avenue to admissibility. (69)
But these Committee Notes dealt with admissions generally--not confessions by a defendant being tried criminally--and did not mention the corpus delicti rule, Opper or Smith, or the corroboration-and-trustworthiness standard.
Did Rule 801(d)(2)(A) intend to eradicate the corpus delicti rule or the Opper and Smith trustworthiness-and-corroboration requirement? Or did the drafters of the Federal Rules of Evidence view Opper and Smith as matters of substantive criminal law unrelated to the admission of evidence? The Federal Rules of Evidence and the Committee Notes provide no definitive answer. What, then, remains of the corpus delicti rule or the Opper and Smith corroboration-and-trustworthiness requirement after the adoption of the Federal Rules of Evidence?
IV. ANALYSIS AND SUGGESTIONS FOR CLARIFICATION
Opper and Smith predate the Federal Rules of Evidence by twenty-one years. Thus, it should come as no surprise that "the Federal Rules of Evidence do not mention the corpus delicti rule." (70) Federal Rule of Evidence 804(b)(3) contains a corroboration-and-trustworthiness requirement for statements against interest offered in a criminal case without citation to Opper or Smith. But Federal Rule of Evidence 801(d)(2)(A) does not include a corroboration-and-trustworthiness requirement for an opposing party's statement, which includes the defendant's confession in a criminal case. And the 1975 Committee Notes for Rule 801(d)(2)(A) make clear that "[n]o guarantee of trustworthiness is required in the case of an admission," albeit without reference to Opper and Smith. (71)
The 1975 Committee Notes for Rule 804(b)(3) ("Statements Against Interest") provide a little (but just a little) insight in comparing the two provisions:
The circumstantial guaranty of reliability for declarations against interest is the assumption that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true. If the statement is that of a party, offered by his opponent, it comes in as an admission, [citing the then-current version of the Rules, which is now Rule 801(d)(2)(A)] and there is no occasion to inquire whether it is against interest, this not being a condition precedent to admissibility of admissions by opponents. (72)
Although these Committee Notes for Rule 804(b)(3) state there are circumstantial guarantees of reliability for declarations against interest, Rule 804(b)(3) recognizes that criminal confessions may be fabricated or inaccurate and expressly requires that a statement offered in a criminal case "that tends to expose the declarant to criminal liability" must be "supported by corroborating circumstances that clearly indicate its trustworthiness" before being admitted. (73)
What, then, might have happened between 1954, when Opper and Smith were decided, and 1975 when the Federal Rules of Evidence were promulgated? In other words, why did the Advisory Committee recommend allowing the admission of criminal confessions under Rule 801 without any corroboration-and-trustworthiness analysis?
In discussing the corpus delicti rule, some have suggested that criminal procedure reforms after 1954, including Escobedo v. Illinois (74) and Miranda v. Arizona, (75) obviated the need for the corpus delicti rule, suggesting a corroboration-and-trustworthiness requirement in the Federal Rules of Evidence for confessions used against a criminal defendant is not necessary. (76) Others counter that voluntariness, on one hand, and the corpus delicti rule or the corroboration-and-trustworthiness requirement, on the other, are distinct inquiries. (77) Commentators have suggested that custodial interrogations require even more protections; (78) that "neither Miranda nor the due process voluntariness doctrine prevents the government from basing a conviction entirely upon an unreliable confession extracted from a mentally ill, intoxicated, or weak-minded suspect so long as the police do not violate the Miranda rules and do not otherwise overreach." (79) These commentators appear to want the United States Supreme Court to revisit its approach in Opper and Smith by adopting even more restrictive rules regarding the government's efforts to introduce a defendant's confession--a daunting task to be sure.
United States Supreme Court cases after the promulgation of the Federal Rules of Evidence in 1975 (after Opper and Smith and the criminal procedure reforms of Escobedo and Miranda) offer no answer. The only Supreme Court decision to cite Federal Rule of Evidence 801(d)(2)(A) is Old Chief v. United States. (80) Although a significant decision addressing relevancy and the danger of unfair prejudice under the Federal Rules of Evidence, Old Chief's cite to Rule 801(d)(2)(A) was a passing reference to the defendant's offer to stipulate that he had a prior felony conviction:
Although Old Chief's formal offer to stipulate was, strictly, to enter a formal agreement with the Government to be given to the jury, even without the Government's acceptance his proposal amounted to an offer to admit that the prior-conviction element was satisfied, and a defendant's admission is, of course, good evidence. See Fed. Rule Evid. 801(d)(2)(A). (81)
To date, no United States Supreme Court opinion has discussed Rule 801(d)(2)(A)'s relation to the Opper and Smith corroboration-and-trustworthiness requirement. (82)
Could the promulgation of the Federal Rules of Evidence--Rule 801(d)(2)(A) in particular--have displaced the Opper and Smith corroboration-and-trustworthiness requirement? After all, in Daubert v. Merrill Dow Pharmaceuticals, Inc., (83) the Supreme Court found that Federal Rule of Evidence 702 (promulgated nearly two decades earlier) "superseded" and "displaced" the "general acceptance of the relevant scientific community" standard for the admissibility of novel scientific evidence adopted in Frye v. United States (84) seventy years earlier. (85) The displacement argument for such a conclusion may be even stronger for Rule 801(d)(2)(A) than in Daubert.
The text of Rule 801(d)(2)(A) does not include a corroboration-and-trustworthiness requirement and, when it was first promulgated, the Committee Note stated "no guarantee of trustworthiness" was required. And Rule 804(b)(3) expressly includes a corroboration-and-trustworthiness requirement. (86) By contrast, in Daubert, the court found the Federal Rules of Evidence displaced Frye where "[n]othing in the text" of Rule 702 "establishes 'general acceptance' as an absolute prerequisite to admissibility[, nor] that Rule 702 or the Rules as a whole were intended to incorporate a 'general acceptance' standard." (87)
However, no federal court has suggested that the Federal Rules of Evidence displace Opper and Smith. In recent years, long after the promulgation of Rule 801(d)(2)(A), all United States Circuit Courts of Appeal have discussed and applied the corroboration-and-trustworthiness requirement set forth in Opper and Smith. (88) None of these decisions suggest that Rule 801(d)(2)(A) displaced or superseded the Opper and Smith corroboration-and-trustworthiness requirement. (89)
Similarly, broad searches of United States District Court decisions do not suggest that Rule 801(d)(2)(A) displaced or superseded the Opper and Smith corroboration-and-trustworthiness requirement. Fifteen United States District Court decisions link Rule 801(d)(2)(A) with either corroboration or trustworthiness, three of which are published. (90) One published opinion does so in ruling on pretrial motions in a criminal case. It quoted the 1975 Committee Note, which in turn quoted in another case addressing the admissibility of documents containing opinions, without mentioning Opper or Smith. (91) In doing so, the opinion stated "[n]o 'guarantee of trustworthiness' is required for a letter in [defendant's] handwriting, and he will have an opportunity to explain or deny his statements at trial." (92) A second opinion takes a similar approach in granting a motion to compel answers "to three questions" in a civil deposition, again without mentioning Opper or Smith. (93) A third opinion does not address the issue. (94) Of the dozen unpublished decisions, only two are criminal cases, with one noting statements properly were used to corroborate the existence of a conspiracy, (95) and the other granting in part defendant's motion in limine. (96) Neither mentioned Opper or Smith.
The cases from the United States Circuit Courts of Appeal established that the Opper and Smith corroboration-and-trustworthiness requirement remains applicable in federal courts. And, despite the text used in Rule 801(d)(2), some courts appear to treat the corroboration and trustworthiness issue as an evidentiary matter. These courts appear to require a corroboration and trustworthiness showing before the confession can be admitted.
The standard governing the admission of a defendant's confession should expressly be reflected with clarity in the Federal Rules of Evidence. And the Federal Rules of Evidence can and should provide at least some additional clarity to standards regarding the admissibility of a defendant's confession in a criminal case. There are at least three alternatives that could advance this needed clarity:
First, the United States Supreme Court could issue an opinion providing clearer standards governing when evidence is sufficient to meet the corroboration and trustworthiness threshold described in Opper and Smith and their progeny. An opinion addressing the issue could allow advocates on all sides, including those arguing that the Opper and Smith corroboration-and-trustworthiness requirement is either unnecessary or inadequate, to make their case, with the United States Supreme Court providing a definitive answer in federal courts. (97) State courts could then adopt the reasoning of the United States Supreme Court's resulting opinion, or chart a different path, in construing their own rules of evidence.
Second, a textual change to Rule 801(d)(2)(A), or even the Committee Notes, could clarify that corroboration and trustworthiness is required for a criminal defendant's confession to be admitted at that individual's criminal trial. Given the federal case law that retains the Opper and Smith corroboration-and-trustworthiness requirements, amending Rule 801(d)(2)(A) would clarify what already appears to be required in those cases and make the issue one of admissibility of evidence. One straightforward option would be to add text to Rule 801(d)(2)(A) for admission of confessions against a criminal defendant like that used in Rule 804(b)(3)(B) for statements against interest. Such a change could be as straightforward as adding language at the end of Rule 801(d)(2): "If an opposing party's statement is offered in a criminal case as one that tends to expose a defendant to criminal liability, to be admissible, it must be supported by corroborating circumstances that clearly indicate its trustworthiness." Such an approach also would have the benefit of using similar text and approaches for statements against interest under Rule 804(b)(3)(B) and confessions offered against a defendant in a criminal matter under Rule 801(d)(2)(A).
Third, and relatedly, Rule 801(d)(2)(A) could be amended to adopt language found in the United States Military Rules of Evidence. For at least fifty years, and in response to Opper and Smith, the Military Rules of Evidence have required corroboration before a criminal defendant's confession can be admitted in evidence against the declarant in criminal proceedings. (98) Currently contained in Military Rule of Evidence 304, the requirement is that a confession ("an acknowledgment of guilt") or an admission ("a self-incriminating statement falling short of an acknowledgment of guilt, even if it was intended by its maker to be exculpatory") "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." (99) Military Rule of Evidence 304 also includes subparts elaborating on what is, and what is not, admissible. (100)
CONCLUSION
The corpus delicti rule, and the more recent trustworthiness-and-corroboration requirement, can have great impact in criminal trials. The standard used to determine the admissibility of confessions and related statements can mean the difference between guilt and innocence.
Our effort here is not to provide a single unified theory about what standard should apply. Instead, an amendment to the Federal Rules of Evidence would be one way to remove doubt about whether the corpus delicti rule (in any of its various forms) or the trustworthiness-and-corroboration requirement of Opper and Smith or some other standard is applicable to determine the admissibility of a defendant's confession at that defendant's criminal trial.
The Federal Rules of Evidence governing the admissibility of a defendant's confession in a criminal trial could, and should, be clearer than they are now. Clarifying the Federal Rules of Evidence can negate some of the existing confusion, provide clarity and, in doing so, prevent unavoidable wrestling with a "vague Latin phrase[] that can easily be misinterpreted and misapplied." (101)
BY SAMUEL A. THUMMA (*) AND ROGER E. BRODMAN (**)
(*) Judge, Arizona Court of Appeals, Division One, Phoenix, Arizona. M.J.S. 2020, Duke University School of Law; J.D. 1988, University of Iowa College of Law; B.S. 1984, Iowa State University. The views expressed, and errors in, this Article are solely those of the authors.
(**) Judge (Retired), Arizona Superior Court, Maricopa County, Phoenix, Arizona. J.D. 1982, Stanford Law School; B.S. 1979, University of Nebraska.
(1) State v. Hansen, 1999 MT 235, [paragraph] 96, 989 P.2d 338, 356.
(2) Id.
(3) David A. Moran, In Defense of the Corpus Delicti Rule, 64 OHIO ST. L.J. 817, 817 n.1 (2003) (citation omitted).
(4) See id. at 817 & n.3 (2003) (citing to 2 MATTHEW HALE, PLEAS OF THE CROWN, OR, A METHODICAL SUMMARY OF THE PRINCIPAL MATTERS RELATING TO THAT SUBJECT 290 (1678)
("I would never convict any person of murder or manslaughter, unless the fact were proven to be done, or at least the body found dead.")); see also Thomas A. Mullen, Rule Without Reason: Requiring Independent Proof of the Corpus Delicti as a Condition of Admitting an Extrajudicial Confession, 27 U.S.F. L. REV. 385, 399 (1993) ("Despite scholarly efforts to endow the corpus delicti rule with a pedigree stretching back to medieval or ancient times, the rule is generally dated from seventeenth and eighteenth century English law. Commentators and courts beginning to describe the history of the corpus delicti rule begin with a[ 1678] observation by Lord Matthew Hale.") (footnotes and citations omitted).
(5) Mullen, supra note 4, at 385; see also Moran, supra note 3, at 817 (citation omitted); Catherine E. White, Comment, "I Did Not Hurt Him... This is a Nightmare": The Introduction of False, But Not Fabricated, Forensic Evidence in Police Interrogations, 2015 WIS. L. REV. 941, 967-68 (stating the corpus delicti rule requires evidence independent from the confession that a crime has been committed) (citation omitted).
(6) Mullen, supra note 4, at 385 (footnote omitted).
(7) Id. at 400-01, 401 n.75 (1993) (discussing Perry's Case, 14 Howell St. Tr. 1311 (1660), where "a suspect confessed and implicated his mother, brother, and himself, in the murder of a man who, after all three were executed, materialized with a bizarre story about being sold into slavery in Turkey" and a case in the United States in 1819 where "the victim turned up in time to prevent the execution of his 'murderer'"); see also Note, Proof of the Corpus Delicti Aliunde The Defendant's Confession, 103 U. PA. L. REV. 638, 638-40, 646-47 (1955) [hereinafter Proof of the Corpus Delicti Aliunde] (discussing Perry's Case and other, more recent, British examples, as well as "[t]he case of the Boorn brothers in Vermont in 1812," who avoided execution "[w]ithin two months of the day set" because the alleged victim was found in 1819, living under an assumed name in New Jersey); Moran, supra note 3, at 826-31 (citing other authority and discussing Perry's Case and the Boorn brothers' case).
(8) United States v. 1,960 Bags of Coffee, 12 U.S. 398, 405 (1814).
(9) Id. at 412 (opinion of Story, J.).
(10) See The Mars, 16 F. Cas. 784, 787 (C.C.D. Mass. 1812).
(11) State v. Long, 2 N.C. 455, 456 (1797) (per curiam); accord Richard A. Leo, Peter J. Neufeld, Steven A. Drizin & Andrew E. Taslitz, Promoting Accuracy in the Use of Confession Evidence: An Argument for Pretrial Reliability Assessments to Prevent Wrongful Convictions, 85 TEMP. L. REV. 759, 790 (2013) [hereinafter Leo et al., Promoting Accuracy] ("The first state to adopt the corpus delicti rule was North Carolina in 1797.") (footnote omitted; citing Long, 2 N.C. 455 (1797)).
(12) Westlaw database search for "corpus delicti" filtered by "U.S. Supreme Court," conducted on April 25, 2024, resulting in thirty-nine cases.
(13) Westlaw database search for "'corpus delicti' and DATE (after 1814 and before 1954)", filtered by "All Federal," conducted on April 25, 2024, resulting in 321 cases.
(14) Daeche v. United States, 250 F. 566, 571 (2d Cir. 1918) (Hand, J.).
(15) Warszower v. United States, 312 U.S. 342, 347 (1941).
(16) Opper v. United States, 348 U.S. 84, 93 (1954).
(17) Smith v. United States, 348 U.S. 147, 156-57 (1954); accord United States v. Calderon, 348 U.S. 160 (1954).
(18) Smith, 348 U.S. at 89 (citing JOHN HENRY WIGMORE, 7 A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW [section][section] 2070-2072 (3d ed. 1940); and Warszower, 312 U.S. at 345 n.2).
(19) Opper, 348 U.S. at 89-90.
(20) Id. at 93.
(21) Id. (citing Smith, 348 U.S. at 147).
(22) Id. at 91.
(23) Smith, 348 U.S. at 155.
(24) Opper, 348 U.S. at 91-92.
(25) Id. at 92.
(26) See, e.g., Leo et al., Promoting Accuracy, supra note 11, at 791 ("In place of the corpus delicti rule, the Supreme Court in two decisions released on the same day in 1954--Smith v. United States and Opper v. United States--announced a new rule, dubbed the trustworthiness rule, which requires corroboration of the confession itself rather than the fact that a crime occurred.") (footnotes omitted); Richard A. Leo, Steven A. Drizin, Peter J. Neufeld, Bradly R. Hall & Amy Vatner, Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 WIS. L. REV. 479, 508 [hereinafter Leo et al., Bringing Reliability Back In] (stating Opper and Smith announced a "new rule of corroboration" that was a "marked contrast to the corpus delicti rule"); Mullen, supra note 4, at 411 (stating Opper and Smith "rejected the corpus delicti rule in favor of a corroboration requirement for the federal courts," adding the corroboration rule is "so stark and undemanding that federal courts have had little occasion to elaborate on it"). Although beyond the scope of this Article, in the 70 years following Opper and Smith, more than 1,500 federal court decisions have discussed the corpus delicti rule, compared to only 321 federal court decisions discussing the rule in the 140 years between 1,960 Bags of Coffee and Opper and Smith. Compare Westlaw database search for "'corpus delicti' and DATE (after 1954)," filtered by "All Federal," conducted on April 25, 2024, resulting in 1,569 cases, with supra notes 11-13.
(27) White, supra note 5, at 967-68 (footnotes and citations omitted).
(28) See Leo et al., Promoting Accuracy, supra note 11, at 790 ("[B]y 1984, all fifty states had adopted some version of" the corpus delicti rule); Leo et al., Bringing Reliability Back In, supra note 26, at 505 ("In 1984, Massachusetts became the fiftieth state to adopt the rule.").
(29) Westlaw database search for "'corpus delicti' and DATE (after 1999)," filtered by "All States," conducted on November April 25, 2024, resulting in 4,089 cases.
(30) See, e.g., State v. Mauchley, 2003 UT 10, [paragraph][paragraph] 46-47, 67 P.3d 477, 488 (rejecting the corpus delicti rule but retaining a "trustworthiness standard" for admissibility of confessions); People v. LaRosa, 2013 CO 2 [paragraph] 3, 293 P.3d 567, 570 (en banc) ("We abandon the corpus delicti rule because we hold that sound reasons exist for doing so. In its place, we articulate the trustworthiness standard, which requires the prosecution to present evidence that proves that a confession is trustworthy or reliable."); see also State v. Hansen, 1999 MT 253, [paragraph] 96, 989 P.2d 338, 356 ("Henceforth, we will review claims of error in the admission of evidence as part of the corpus delicti or res gestae by determining whether the evidence was admissible under some provision of the Montana Code Annotated or under the Montana Rules of Evidence."); Moran, supra note 3, at 832 & n.103 ("In the last forty years, courts in at least ten states and the District of Columbia have followed the Supreme Court's lead in Opper by rejecting or abolishing the corpus delicti rule in favor of a 'corroboration' or 'trustworthiness' standard.") (citing cases).
(31) Leo et al., Promoting Accuracy, supra note 11, at 829 (citing opinions from eight states, "among others").
(32) State v. Bishop, 431 S.W.3d 22, 61 (Tenn. 2014); see also id. at 54 ("Balancing the strengths and weaknesses of the traditional corpus delicti rule and the trustworthiness standard, New Jersey and New Mexico have adopted a compromise rule they call the 'modified trustworthiness' standard.") (citing cases).
(33) Miller v. State, 457 S.W.3d 919, 926-27 (Tex. Crim. App. 2015) ("[W]e are not persuaded that the corpus delicti rule should be abolished or replaced with the trustworthiness standard.... We hold that Texas law does recognize a closely related crimes exception to strict application of the corpus delicti rule, but the exception applies only when the temporal relationship between the offenses is sufficiently proximate that introduction of the extrajudicial confession does not violate the policies underlying the corpus delicti rule.").
(34) See, e.g., State v. Allen, 513 P.3d 282, 311 (Ariz. 2022) ("We decline to abridge the doctrine of corpus delicti."); State v. Keadle, 977 N.W.2d 207, 215-16 (Neb. 2022) (applying the corpus delicti rule); State v. Hagar, 210 A.3d 827, 831-34 (Me. 2019) (same).
(35) See generally Developments in the Law: Confessions, 79 HARV. L. REV. 935, 1072-84 (1966) (discussing the issue).
(36) See John Leubsdorf, Fringes: Evidence Law Beyond the Federal Rules, 51 IND. L. REV. 613, 618-21 (2018) (discussing alternatives and citing cases).
(37) See Brian C. Reeve, State v. Parker: North Carolina Adopts the Trustworthiness Doctrine, 64 N.C. L. REV. 1285, 1295 (1986) (noting State v. Parker, 337 S.E.2d 487, 493 (N.C. 1985) observed that it was "'nearly impossible' to apply the doctrine to crimes that traditionally have no tangible corpus, such as conspiracy and the 'attempt' crimes; and... modern statutes often define crimes that have no obvious corpus per se.") (footnotes omitted); cf. Proof of the Corpus Delicti Aliunde, supra note 7, at 651-52 (discussing, in a different context, the difficulty of applying the corpus delicti rule to specific crimes, including "any offense involving fraud, such as tax evasion") (footnote and citation omitted).
(38) See Mullen, supra note 4, at 390-94 (discussing, with citation to cases, the varying approaches courts have used to this "quantum of proof" issue); Artem M Joukov & Samantha M. Caspar, Wherefore is Fortunato? How the Corpus Delicti Rule Excludes Reliable Confessions, Helps the Guilty Avoid Responsibility, and Proves Inconsistent with Basic Evidence Principles, 41 AM. J. TRIAL ADVOC. 459, 475-80 (2018) (citing cases).
(39) Langevin v. State, 258 P.3d 866, 873 (Alaska Ct. App. 2011) ("[M]ost American jurisdictions follow the 'implicit element' approach to corpus delicti. Under this approach, corpus delicti is an element of the government's proof--and the general rule is that a defendant is entitled to a judgement of acquittal if the government fails to offer proof of each element of the crime") (citing 1 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW [section] 1.4(b) at 31 (2d ed. 2003)).
(40) Dodds v. State, 997 P.2d 536, 540 (Alaska Ct. App. 2000) ("Since territorial days, Alaska cases appear to have followed the 'evidentiary foundation' approach to the corpus delicti rule.").
(41) State v. Leniart, 215 A.3d 1104, 1120 (Conn. 2019) ("[W]e conclude that the corpus delicti rule [under Connecticut law] is a hybrid rule that not only governs the admissibility of confession evidence but also imposes a substantive requirement that a criminal defendant may not be convicted solely on the basis of a naked, uncorroborated confession.").
(42) State v. Holl, 966 N.W.2d 803, 809 (Minn. 2021) ("The statute codifying the corpus delicti rule in Minnesota was originally enacted as a territorial statute in 1851 and remains largely unchanged.")
(43) Mullen, supra note 4, at 395-96 (discussing, with citation to cases, the varying approaches courts have used in addressing this "order of proof" issue; concluding "the only response to the order of proof problem is to bifurcate the trial when the existence of the corpus delicti is a jury problem," but adding "[n]o jurisdiction has adopted this procedure").
(44) Accord Parker, 337 S.E.2d at 492 ("It is therefore very difficult to synthesize and harmonize the numerous decisions on this issue, and much confusion has been caused by failure to distinguish among the different formulations of the corpus delicti requirement.... In his treatise on evidence, Wigmore notes that '[t]he meaning of the phrase corpus delicti has been the subject of much loose judicial comment...'")(quoting 7 Wigmore on Evidence [section] 2072 at 524 (Chadbourn rev.1978))).
(45) See Moran, supra note 3, at 818 (discussing, with citation to cases, the varying approaches courts have used in addressing this "order of proof" issue).
(46) Id.
(47) See id. at 818-19 (emphasis added; footnotes and citations omitted); see generally Joukov & Caspar, supra note 38, at 465 (detailing criticisms of the corpus delicti rule); Mullen, supra note 4, at 385 (same).
(48) Moran, supra note 3, at 818-19 (first citing U.S. CONST. amend XIV, [section] 1; and then citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)).
(49) Daeche v. United States, 250 F. 566, 571 (2d Cir. 1918).
(50) Id.
(51) FED. R. EVID. 1101(b).
(52) Edward J. Imwinkelried, Admitting Evidence of an Accused's Uncharged Misconduct Under the Doctrine of Objective Chances: Before a Judge May Consider Evidence of an Uncharged Incident to Decide Whether There Has Been a Suspicious Coincidence, Must the Accused Claim the Incident Was an Accident?, 99 DENV. L. REV. 1, 3 (2021) ("Forty-four states have evidence codes largely modeled on the Federal Rules of Evidence.").
(53) FED. R. EVID. 804(b)(3).
(54) Id.
(55) Id. (emphasis added).
(56) See FED. R. EVID. 804 advisory committee's notes on proposed rules.
(57) FED. R. EVID. 804(b)(3).
(58) See FED. R. EVID. 804 advisory committee's notes on proposed rules.
(59) Id.
(60) FED. R. EVID. 804(b)(3)(B).
(61) FED. R. EVID. 804 advisory committee's notes to 2010 amendment; see also FED. R. EVID. 804 advisory committee's notes on proposed rules ("[O]ne senses in the decisions a distrust of evidence of confessions by third persons offered to exculpate the accused arising from suspicions of fabrication either of the fact of the making of the confession or in its contents, enhanced in either instance by the required unavailability of the declarant. Nevertheless, an increasing amount of decisional law recognizes exposure to punishment for crime as a sufficient stake. The requirement of corroboration is included in the rule in order to effect an accommodation between these competing considerations.") (citations omitted).
(62) FED. R. EVID. 804(b)(3) advisory committee's notes to 2010 amendment.
(63) Id. (emphasis added) (citations omitted).
(64) See FED. R. EVID. 801(2)(d)(A).
(65) Id.
(66) FED. R. EVID. 801 advisory committee's notes on proposed rules.
(67) See FED. R. EVID. 801(2)(d)(A) (not referencing the corpus delicti rule, trustworthiness, or corroboration).
(68) Act of Jan. 2, 1975, Pub. L. 93-595, 88 Stat. 1926, 1939 (enacting the Federal Rules of Evidence); see also FED. R. EVID. 801 advisory committee's note to 2011 amendments ("Statements falling under the hearsay exclusion provided by Rule 801(d)(2) are no longer referred to as 'admissions' in the title to the subdivision.").
(69) FED. R. EVID. 801 advisory committee's notes on proposed rules (emphasis added) (citations omitted).
(70) Joukov & Caspar, supra note 38, at 471.
(71) FED. R. EVID. 801 advisory committee's notes on proposed rules.
(72) Id.
(73) FED. R. EVID. 804(b)(3)(B).
(74) Escobedo v. Illinois, 378 U.S. 478, 492 (1964) (holding that "when the process [of investigating crime] shifts from investigatory to accusatory--when its focus is on the accused and its purpose is to elicit a confession--our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.").
(75) Miranda v. Arizona, 384 U.S. 436, 444 (1966) (holding that, before custodial interrogation, the suspect "must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed."); see also Massiah v. United States, 377 U.S. 201, 206 (1964) ("We hold that the petitioner was denied the basic protections of that guarantee [his Sixth Amendment right to counsel] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.").
(76) See, e.g., Mullen, supra note 4, at 404 ("If the need to avoid involuntary confessions ever had any force as a rationale for the corpus delicti rule, that force has been dissipated by United States Supreme Court decisions limiting the admissibility of questionable confessions."); 1 MCCORMICK ON EVIDENCE [section] 145 at 563 (4th ed. 1992) (similar); Joukov & Caspar, supra note 38, at 507 ("Proponents of the corpus delicti rule often argue that courts should retain the rule because of the protections it provides against the admission of unreliable or coerced confessions or confessions by the insane. However, these concerns should become alleviated even without the corpus delicti rule as the Due Process Voluntariness Doctrine under the Fifth and Fourteenth Amendments, the Double Jeopardy Clause of the Fifth Amendment, the Miranda doctrine under the Fifth Amendment, and the Messiah doctrine under the Sixth Amendment provide adequate, and in some cases even stronger, protections against unreliable or coerced confessions.") (footnotes omitted).
(77) Leo et al., Bringing Reliability Back In, supra note 26, at 488 ("The common law of evidence developed two primary means of preventing convictions based on false confessions: the voluntariness and corroboration rules. Both act as exclusionary rules, respectively holding that neither an involuntary nor an uncorroborated confession may be admitted against a defendant in a criminal trial. Although these two distinct doctrines have been referred to as 'first cousins' in the common law of evidence, they work in entirely different ways and have developed in different directions. Significantly, the voluntariness rule took on a constitutional role concerned with the relationship between citizen and state rather than its original goal of excluding unreliable confession evidence. In contrast, the corroboration rule remained true to its roots, but has been ineffective at accomplishing its goal of preventing unreliable confession evidence from causing wrongful convictions.") (footnote omitted); see also id. at 488-511 (discussing the history and application of voluntariness and corroboration rules) (citing authority).
(78) Leo et al., Promoting Accuracy, supra note 11, at 817 (expressing these concerns and proposing a new Federal Rule of Evidence 801(d)(3) requiring corroboration for statements made during custodial interrogations, or requiring such statements be defined as hearsay, treated as a statement against interest under Rule 804(b)(3), and subject to corroboration and trustworthiness). These same authors propose a statute to address similar concerns. See id. at 836-37 Appendix.
(79) Moran, supra note 3, at 819.
(80) Old Chief v. United States, 519 U.S. 172 (1997). In 1974, before the Federal Rules of Evidence were promulgated, the United States Supreme Court referenced proposed Rule 801(d)(3), but only for the proposition that admissions were not hearsay. United States v. Matlock, 415 U.S. 164, 172 n.8 (1974) ("Rule 801(d)(2)(A) of the proposed Federal Rules of Evidence, approved by the Court on November 20, 1972, and transmitted to Congress, expressly provides that a party's own statements offered against him at trial are not hearsay.")
(81) Old Chief, 519 U.S. at 186.
(82) In a pre-Federal Rules of Evidence opinion, the United States Supreme Court applied the Opper and Smith corroboration and corroboration requirement to vacate a conviction. See Wong Sun v. United States, 371 U.S. 471, 487-91 (1963) (discussing and applying cases and concluding that, as to one defendant, "the only possible source of corroboration is removed and his conviction must be set aside for lack of competent evidence to support it."). The United States Supreme Court has, however, cited Opper to address when separate trials for cases involving more than one defendant should be held. See Zafrio v. United States, 506 U.S. 534, 537-38 (1993); Parker v. Randolph, 442 U.S. 60, 74 n.6 (1979); Spencer v. Texas, 385 U.S. 554, 562 (1967).
(83) Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
(84) Frye v. United States, 293 F. 1013 (1923).
(85) Daubert, 509 U.S. at 587, 589 (Petitioners "contend that the Frye test was superseded by the adoption of the Federal Rules of Evidence. We agree." Noting, in a different context, that "the Frye test was displaced by the Rules of Evidence.") (footnote omitted).
(86) FED. R. EVID. 804(b)(3).
(87) Daubert, 509 U.S. at 589. And even then, Daubert found that the Frye "general acceptance" standard "can yet have a bearing on the inquiry" for admissibility of expert testimony under Rule 702. Id. at 594.
(88) See, e.g., United States v. Tanco-Baez, 942 F.3d 7, 16-25 (1st Cir. 2019) (citing Opper and Smith; concluding "Cepeda's conviction on Count One rested on an uncorroborated admission and thus must be reversed because it is not supported by sufficient evidence"); United States v. Irving, 452 F.3d 110, 118-19 (2d Cir. 2006) (citing Opper and Smith; discussing "Corpus Delicti/Corroboration Rule Issue" and modification of traditional corpus delicti rule by Opper and Smith; concluding "the prosecution presented substantial independent evidence necessary to establish the trustworthiness of Irving's journal," described as containing various confessions); United States v. Coleman, 862 F.2d 455, 461 (3d Cir. 1988) (citing Opper; rejecting defendant's argument that his conviction was uncorroborated and "insufficient to sustain a conviction.... Logan's recitation of Coleman's admissions dovetails with the evidence adduced by the other witnesses and is circumstantially corroborated by it."); United States v. Rodriguez-Soriano, 931 F.3d 281, 287-91 (4th Cir. 2019) (citing Opper and Smith; vacating conviction in a 2-1 decision given "evidence was insufficient to corroborate Rodriguez-Soriano's confession, and thus insufficient to establish his guilt of the offense beyond a reasonable doubt."); United States v. Sterling, 555 F.3d 452, 456-57 (5th Cir. 2009) (citing Opper; noting "federal courts do not apply the traditional common-law corpus delicti doctrine"; and then noting "A jury heard both confession and recantation and concluded beyond a reasonable doubt that Sterling committed the crimes to which he confessed. Sufficient independent evidence corroborating the confession existed to allow the jury to fulfill this function."); United States v. Bowens, 938 F.3d 790, 795 (6th Cir. 2019) (citing Opper; noting confessions, made after the crime was committed, were subject to corroboration requirement, a rule "designed to protect against false confessions, especially those obtained by prosecutorial pressure," but finding the statements made occurred before the crime meaning corroboration was not required); United States v. O'Leary, 957 F.3d 731, 734 (7th Cir. 2020) (citing Opper and Smith; "Alone, an uncorroborated confession is generally insufficient to support a conviction; the government must provide 'substantial independent evidence which would tend to establish the trustworthiness of the statement.' All elements must be established by independent evidence or corroborated admissions"; concluding government had provided sufficient corroborating evidence) (citations omitted); United States v. Farjado-Farjado, 594 F.3d 1005, 1009 (8th Cir. 2010) (citing Opper; rejecting the alternative argument that defendant's confession was not properly corroborated, noting defendant's confession "was corroborated by plenty of evidence" and the "corroborated confession was sufficient evidence to support the jury verdict."); United States v. Niebla-Torres, 847 F.3d 1049, 1054-59 (9th Cir. 2020) (citing Opper and Smith and applying "[t]he corpus delicti doctrine," which "requires that a conviction must rest on more than a defendant's uncorroborated confession"; concluding "the evidence adduced at trial satisfied the corpus delicti doctrine" and affirming convictions"); United States v. Wiseman, 172 F.3d 1196, 1212 (10th Cir. 1999) (citing Opper and Smith; "Opper rejected a view which had earlier been the rule in many jurisdictions and was deeply rooted in the common law that independent evidence was required to corroborate the corpus delicti. In the instant case, we think the corroboration was sufficient that even the older corpus delicti rule, were it applicable, would be satisfied.") (citation omitted); United States v. Morales, 893 F.3d 1360, 1370-71 (11th Cir. 2020) (citing Opper and Smith; "It's true that a defendant's uncorroborated confession is not enough to support a conviction. The government must introduce substantial independent evidence to establish the trustworthiness of the confession;" concluding government had provided sufficient corroborating evidence) (citations omitted); see also United States v. Dickinson, 163 F.3d 639, 640-43 (D.C. Cir. 1999) (citing Opper and Smith; noting, in rejecting challenge to jury instruction: "The jury's role is not to reconsider the judge's corroboration determination under Opper, but rather to determine for itself whether an out-of-court statement, though meeting Opper's requirement, is sufficiently trustworthy to convince the jury, in conjunction with any other evidence, of the defendant's guilt beyond a reasonable doubt."); Uske v. U.S. Postal Serv., 56 F.3d 1375, 1377-78 (Fed. Cir. 1995) ("The Opper Court held that in order to support a conviction 'the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti... It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth.'") (citation omitted).
(89) And as another point of reference, there is just one federal circuit court opinion addressing Federal Rule of Evidence 801(d)(2)(A) and Opper. Westlaw database search for "Opper /70 801(d)(2)(A)," filtered by "Fed. Ct. App.," conducted on April 25, 2024, resulting in one case. See United States v. Velarde, 528 F.2d 387 (9th Cir. 1975). Velarde, decided in December 1975, just after the promulgation of the Federal Rules of Evidence, stated simply: "[t]he fact admitted was that Velarde participated in the attack on Agent Camarena. The independent evidence of that fact was more than sufficient for Opper purposes." Velarde, 528 F.2d at 389.
(90) Westlaw database search for "801(d)(2)(A) /20 (corroborat! or trustworth!) and DATE (after July 1, 1975)," filtered by "Fed. Dist.," conducted on April 25, 2024, resulting in sixteen cases, four of which were published. A Westlaw database search for "801(d)(2)(A) /70 Opper and DATE (after July 1, 1975)," filtered by "Fed. Dist.," conducted on April 25, 2024, resulted in one unpublished case. United States v. Toth, 1990 WL 106765, at *2 (E.D. Pa. July 19, 1990) (noting the court had denied a motion for judgment of acquittal by "ruling that there was sufficient independent evidence which corroborated the defendant's statements to" law enforcement).
(91) United States v. Folse, 163 F. Supp. 3d 898, 913-14, 918 (D.N.M. 2015) (quoting Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 667 (10th Cir. 2006), which concluded in a civil case that "any contention that Bishop Brown's letter was inadmissible under Rule 801(d)(2) because his opinions in the letter were not rationally based on his perceptions lacks merit.").
(92) Folse, 163 F. Supp. 3d at 918.
(93) Donlin v. Aramark, Inc., 162 F.R.D. 149, 150-51 (D. Utah 1995).
(94) Harris v. Walls, 53 F. Supp. 3d 1092, 1095 n.1 (C.D. Ill. 2014).
(95) United States v. Swinton, 2022 WL 3053767, *5-6 (D. Conn. Aug. 3, 2022).
(96) United States v. Lopez, 1987 WL 15991, *5 (N.D. Ill. Aug. 17, 1987) ("[S]ince Lopez's statements in themselves are not admissible evidence under [Rule] 404(b) (or for that matter under [Rule] 801(d)(2)(E) or 801(d)(2)(A)), this corroborating evidence is similarly inadmissible.").
(97) See Moran, supra note 3, at 851-53 (arguing a corroboration-and-trustworthiness requirement cannot substitute for the corpus delicti rule).
(98) See R. Wade Curtis, Military Rule of Evidence 304(g)--The Corroboration Rule, ARMY LAW. 35, 35 n.1 (July 1987), (noting the rule, which has been updated since the article was published, "'is substantially the same as paragraph 140(a)(5) of the Manual for Courts-Martial, United States, 1969 (Revised edition).'" (quoting United States v. Lowen, 14 M.J. 784, 786 (A.C.M.R. 1982)).
(99) MIL. R. EVID. 304(a)(1)(B)-(C) (definitions of "Confession" and "Admission"); id. 304(c)(1) (admissibility provision) (emphasis added).
(100) MIL. R. EVID. 304(c)(2)-(3). The rule provides:
(2) Other uncorroborated confessions or admissions of the accused that would themselves require corroboration may not be used to supply this independent evidence. If the independent evidence raises an inference of the truth of some but not all of the essential facts admitted, then the confession or admission may be considered as evidence against the accused only with respect to those essential facts stated in the confession or admission that are corroborated by the independent evidence.
(3) Corroboration is not required for a statement made by the accused before the court by which the accused is being tried, for statements made prior to or contemporaneously with the act, or for statements offered under a rule of evidence other than that pertaining to the admissibility of admissions or confessions.
(101) State v. Hansen, 1999 MT 253, [paragraph] 96, 989 P.2d 338, 356
 Printer friendly
 Cite/link
 Email
 Feedback
| |
| Author: | Thumma, Samuel A.; Brodman, Roger E. |
|---|---|
| Publication: | Journal of Criminal Law and Criminology |
| Date: | Jan 1, 2024 |
| Words: | 9872 |
| Previous Article: | RETHINKING THE BALANCE OF INTERESTS IN NON-EXCULPATORY DEFENSES. |
| Next Article: | "THE CLEAREST PROOF": CONSTITUTIONAL CONCERNS SURROUNDING THE ILLINOIS SEXUALLY VIOLENT PERSONS COMMITMENT ACT. |
| Topics: | |