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The corroboration quandary: a historical overview of the interpretation of MRE 304(g).

I.   INTRODUCTION
II.  BACKGROUND
     A. Opper v. United States
     B. Smith v. United States
     C. Interpreting Smith and Opper
     D. Military Cases Following Smith and Opper
     E. Corroboration Found Insufficient
        1. Court of Military Appeals/Court of Appeals for the Armed
           Forces Decisions
           a. United States v. Rounds
           b. United States v. Faciane
           c. United States v. Duvall
        2. Air Force Decisions
          a.  United States v. Greenberg
          b.  United States v. Springer
          c.  United States v. Lowery
        3. Army Decisions
          a. United States v. Holler
          b. United States v. Gaines
          c. United States v. Shavers
          d. United States v. Dake
          e. United States v. Loewen
          f. United States v. Egan
        4. Navy/Marine Corps Decisions
          a. United States v. Kelly
          b. United States v. Harjak
        5. Discussion
     F. Corroboration Found Sufficient
        1. Court of Military Appeals/Court of Appeals for the Armed
          Forces Decisions
          a. United States v. Seigle
          b. United States v. White
          c. United States v. Yates
          d. United States v. Yeoman
          e. United States v. Melvin
          f. United States v. Hughes
          g. United States v. Maio
          h. United States v. Cottrill
          i. United States v. Baldwin
          j. United States v. Seay
          k. United States v. Arnold
        2. Air Force Decisions
          a. United States v. Smith
          b. United States v. Olesiak
          c. United States v. Richards
          d. United States v. Baran
          e. United States v. Mitchell
          f. United States v. Foley
          g. United States v. McCastle
          h. United States v. Lawrence
          i. United States v. Cucuzella
        3. Army Decisions
          a. United States v. Johnson
          b. United States v. Schuring
          c. United States v. Poduszczak
          d. United States v. O'Rourke
        4. Navy/Marine Corps Decisions
          a. United States v. Hise
          b. United States v. Crider
          c. United States v. Henken
          d. United States v. Allen
III. CONCLUSION
     A. What Are Essential Facts?
     B. When Can a Confession to One Offense Corroborate
        Another?
     C. Final Thoughts


I. INTRODUCTION

The requirement that confessions be corroborated by independent evidence has been prominent throughout the history of military jurisprudence. Colonel William Winthrop, the widely renowned "Blackstone of military law" (1) noted, "As to the requisites to the admission in evidence of extra-judicial confessions--it has been seen, in the first place that a confession cannot be admitted in evidence till the corpus delicti--the fact that the alleged criminal act was in fact committed, by somebody--is proved." (2) In its current formulation, Military Rule of Evidence 304(g), requiring that, as a prerequisite to their admission, confessions be corroborated by independent evidence, derives from substantially similar rules dating back more than 40 years. (3) In addition, the twin Supreme Court cases upon which the rule is based remain the definitive pronouncements on the requirement. While one might suppose a rule of such classic vintage to have matured into a well-settled and easily-applied rubric, a review of military case law applying the standard establishes quite the contrary. This article will analyze that case law in an attempt to distill some useful guidance and to provide an analytical framework by which one may more predictably engage in the highly fact-specific task of drawing the line in close cases between which confessions should and should not be admitted into evidence.

II. BACKGROUND

Though the corroboration rule traces back to English common law, American practice has generally expanded the requirement beyond its English roots, based in large part on an inherent distrust of prosecutions based solely upon the accused's confession. (4) It is difficult to state the rationale more comprehensively and succinctly than did the United States Supreme Court in 1954:
   Its purpose is to prevent "errors in convictions based upon untrue
   confessions alone": (5) its foundation lies 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. Confessions may be unreliable
   because they are coerced or induced, and although separate
   doctrines exclude involuntary confessions from consideration by the
   jury, [citations omitted] further caution is warranted because the
   accused may be unable to establish the involuntary nature of his
   statements. Moreover, though a statement may not be "involuntary"
   within the meaning of this exclusionary rule, still its reliability
   may be suspect if it is extracted from one who is under the
   pressure of a police investigation-whose words may reflect the
   strain and confusion attending his predicament rather than a clear
   reflection of his past. Finally, the experience of the courts, the
   police and the medical profession recounts a number of false
   confessions voluntarily made. (6)


The twin cases of Smith v. United States (7) and Opper v. United States (8) purported to resolve a split among the circuits. On the one side, what will hereinafter be referred to as the "substantial evidence" cases held corroboration of a confession required merely substantial evidence supporting the veracity of the confession, in which case it was only required that the corroborative evidence touch on the corpus delicti of the charged offense. The other line of cases followed what will hereinafter be referred to as the "elements" analysis, requiring independent evidence tending to establish "the whole of the corpus delicti." (9) This rule was interpreted to require corroboration which proved "each of the main elements or constituent parts of the corpus delicti." (10) At the outset, it is important to understand the term itself. Corpus delicti, does not mean "dead body" though in a murder case, the body certainly would fit the definition. Instead, "corpus delicti" means "injury against whose occurrence the law is directed," (11) or as Col Winthrop stated, "the fact that the alleged criminal act was in fact committed, by somebody...." (12)

A. Opper v. United States

Opper was charged with paying an Air Force contracting employee, Hollifield, to exert influence on the procurement process. After the alleged offense, Opper admitted to FBI agents that he paid money to Hollifield, but steadfastly maintained the money was just a loan and that there was never an agreement for Hollifield to influence the procurement process. (13) The government could directly corroborate one element--that the accused paid money to Hollifield. They did this by proof that Opper had cashed a check for $1,000. The prosecution also had evidence of a contemporaneous airline ticket in Hollifield's name to Chicago where Opper was located. This lined up with Opper's description of how the transaction was funded and when and where it occurred. So, in essence, the government was able to corroborate the "who, what, where, when and how" provided by Opper. As to the "why," the prosecution circumstantially contradicted Opper's denials of an illicit motive by independent proof of attempts made by Hollifield to assure the Air Force purchased Opper's products. (14)

In deciding the issue, the Supreme Court adopted the "substantial evidence" rationale, holding in an oft-quoted passage:
   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. [citation omitted]. 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. (15)


The Court's analysis found the payment was adequately corroborated and that the motive was sufficiently proven by independent evidence. However, it is debatable how much of a relaxation of the so-called "elements" test this really represented. In this case, the government arguably had sufficient circumstantial evidence to support a conviction without the confession in issue. While certainly Opper's admission to actually making the transfer strengthens the government's case, clearly every element of the offense is either corroborated or independently proven. In fact, nothing in the Opper decision indicates a departure from the requirement quoted from Judge Learned Hand's opinion in Deache v. United States, the seminal case of the "substantial evidence" line of cases, that the independent evidence still "touch on" the corpus delicti. (16) To the contrary, Opper's requirement that the corroboration support the "essential facts admitted" would seem to preserve some vestige of the "elements" analysis. In fact, it would seem from this holding that every "essential fact" must be proved by either a corroborated admission or by independent evidence.

B. Smith v. United States

The Smith case, decided during the same term as Opper, presented a slightly different issue, namely whether the corroboration requirement should be extended to cases where there is no tangible corpus delicti, such as, in that particular case, tax evasion. In that case, the accused was charged with understating his income over several years. In his statement to investigators, he admitted to a very modest initial net worth. The cornerstone of the prosecution's case involved this modest figure, juxtaposed with other evidence of his rapidly increasing holdings over the next several years to prove circumstantially that he had significant unreported income during those years. (17) First, the court held that in cases where there is no tangible corpus delicti, "the corroborative evidence must implicate the accused in order to show that a crime has been committed." (18) As in Opper, the Court took note of the two competing lines of cases, but in rather enigmatic fashion held:
   In addition to differing views on the substantiality of
   specific independent evidence, the debate has centered
   largely about two questions: (1) whether corroboration is
   necessary for all elements of the offense established by
   admissions alone, [citations omitted], and (2) whether it is
   sufficient if the corroboration merely fortifies the truth of
   the confession, without independently establishing the
   crime charged, [citations omitted]. We answer both in the
   affirmative.


The court continued, "All elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense 'through' the statements of the accused." (19) The first part of this holding seems to mirror the rationale behind the "elements" analysis, but the second at least raises the possibility that a confession could be corroborated by evidence unrelated to the charged offense that merely bolsters the confession itself. Taking this line of reasoning to its logical conclusion; however, would result in the corroboration requirement being completely subsumed within the requirement that confessions be voluntary, as those circumstances tending to show that a confession was given voluntarily would, in virtually every case have at least some tendency to bolster the reliability of the confession itself, but the text of the Smith decision tends to contradict the intent to allow this sort of "bootstrap" corroboration. The Smith decision itself noted the historical need to account for the counter-intuitive reality that false confessions are on occasion voluntarily made. (20)

The Smith court's analysis of the facts does not render the concept any easier to grasp either. On the one hand, in rather straightforward fashion the Court noted that the admissions in question (as to the Appellant's modest opening net worth) are directly corroborated by the Appellant's tax returns over the previous years and by the fact these tax returns are consistent with his admission regarding those previous years. (21) Nonetheless, the Court went on to observe that the admissions could also be corroborated by the government's other evidence tending to show, not the Appellant's opening net worth, but bolstering the conclusion that he had committed the charged offense of tax evasion. Specifically, the court spoke of his lavish expenditures and drastically increased holdings over the prosecution years without a concomitant increase in his reported income. (22) Thus, while the Court purported to adopt the holding that the corroboration could bolster the confession without independently establishing the crime charged, it found the confession corroborated precisely because of the ample evidence tending to establish the commission of the charged crime. Thus, while the holding would seem to open the door to the kind of "bootstrap" corroboration mentioned earlier, the Court's analysis seems only to prevent an accused from protesting the use of his otherwise uncorroborated confession to a single element in the face of other ample evidence of his overall guilt.

In fact, this conclusion is consistent with the general application of the "substantial evidence" rule prior to Smith. This line of cases largely hearkens back to the opinion of Judge Learned Hand in the Daeche decision, where, as mentioned above it was held that the corroborative evidence must still touch on the corpus delicti. (23) The facts of the Daeche case are instructive. In that case, the Defendant was charged with conspiring with several others to sabotage warships containing munitions. The court in that case found other evidence of the existence of the conspiracy, combined with evidence of the Defendant's attempts to obtain dynamite in furtherance of the conspiracy, sufficient to corroborate his confession to being a part of the conspiracy. (24) This was in contrast to the practice in some other courts of requiring the jury to conclude beyond a reasonable doubt there was sufficient independent evidence of the corpus delicti before they could consider the confession. In contrast, the court held in an oft-quoted passage, "... any corroborating circumstances will serve which in the judge's opinion go to fortify the truth of the confession. Independently they need not establish the truth of the corpus delicti at all, neither beyond a reasonable doubt nor by a preponderance of proof." (25)

C. Interpreting Smith and Opper

Understood against this backdrop, it is clear that the Smith and Opper decisions, even though they affirmed a line of cases departing from some of the most stringent applications of the corroboration rule, also intended to maintain a requirement more strict and in addition to the requirement that the confession merely be voluntary. The touchstone of this more stringent requirement seems to be that the corroborative evidence at least "touch on" the corpus delicti, or as the Smith court stated, "implicate the accused in order to show that a crime has been committed." (26)

D. Military Cases Following Smith and Opper

Military courts did not immediately adopt the holdings in Smith and Opper. Instead, they continued to follow the "elements" rule as enunciated in paragraph 140a of the 1951 Manual for Courts Martial. (27) This provision was interpreted to require independent evidence tending to establish the existence of each element of the offense charged. (28) In fact, in the face of continued entreaties by appellate trial counsel to adopt the Opper rule, the Courts continued to uphold paragraph 140a as within the President's authority to promulgate, notwithstanding the Supreme Court's decision to create a more lenient rule in civilian courts. (29) It was not until the adoption of the 1969 Manual for Courts Martial that the Smith and Opper decisions became operative for military courts. Paragraph 140a of that Manual, survives almost entirely intact in MRE 304(g), with the exception that the MRE provision eliminated the requirement for Military Judges to instruct on corroboration in close cases, opting instead to treat corroboration entirely as a matter to be determined by the military judge.

Not surprisingly, much of the ensuing case law centered on the questions of the quantum of corroborative evidence necessary for a confession or admission to be admissible. In that vein, two of the most oft-quoted passages permeating post-Opper military corroboration jurisprudence are found in the 1987 and 1988 Court of Military Appeals decisions in United States v. Yeoman and United States v. Melvin, where the quantum required is described as "slight" (30) or "very slight." (31) Though the Court in Melvin recognized no mathematical formula could be employed these statements beg the ultimate question, "How slight is very slight?" Perhaps the best starting point for understanding where this minimal threshold lies is by analyzing those cases falling below it.

E. Corroboration Found Insufficient

Military cases since the 1968 adoption of the Opper rule where corroboration was found to be insufficient represent a distinct minority of decisions. They are, however, instructive on just what factors are still considered salient in analyzing a corroboration question. The ensuing discussion will first analyze those decisions of the Court of Military Appeals and the Court of Appeals for the Armed Forces and will then discuss published service court decisions wherein corroboration was found lacking.

1. Court of Military Appeals/Court of Appeals for the Armed Forces Decisions

a. United States v. Rounds

Rounds (32) is perhaps one of the most useful cases for one in search of the line of delineation between sufficient and insufficient corroboration. In that case, the accused admitted to several instances of illegal drug use. Though most were found to be sufficiently corroborated, one in particular was not. As to his cocaine use, the Appellant stated, "I did the cocaine in Houston. A couple times. On Thanksgiving and on New Years. [...] Ron [and] Terry never went to Houston. Just Eric and myself. That's when I did the cocaine. Then and only then have I ever thought about it before." (33) The proffered corroboration for the Thanksgiving cocaine use consisted of the testimony of an Airman Eric Sax, who stated that he left the accused in the company of known drug users, at least one of whom was known to have been previously involved with cocaine and that he was absent from the party for about an hour. (34) The Court held the other drug uses were corroborated where the two corroborating witnesses' testimony "dovetailed" with the time, place and persons involved, holding, "... testimony concerning these two incidents clearly shows that appellant had both access and the opportunity to ingest the very drugs he admitted using in his confession." (35) Regarding the Thanksgiving use, however, the differentiating factor was that there was not testimony that drug use was taking place or that drugs were even available at the Thanksgiving party.

b. United States v. Faciane

In Faciane, (36) the accused admitted to fondling his daughter on three separate occasions. The proffered corroboration consisted of a social worker's account of the daughter's statements confirming the fondling as well as evidence of changes in her behavior after spending time with her father, to include sticking a toothbrush into her vagina and showing an increased interest in watching babies' diapers being changed at her daycare. (37) The social worker was allowed to recount the daughter's statements under the medical treatment exception to the hearsay rule. A unanimous Court of Military Appeals disagreed with the trial judge's application of the hearsay exception and found the remaining evidence insufficient to corroborate, stating, "Although the Government argues that appellant's exclusive custody of the child establishes that he had access and the opportunity to abuse her, we are unwilling to attach a criminal connotation to the mere fact of a parental visit." (38) This case appears to contradict the holding in Rounds that "access and opportunity" are sufficient to corroborate. Upon closer evaluation, however, it seems the differentiating factor has to do with the fact that access to contraband such as illegal drugs is quite different from access to one's own child, which carries no basis for inferring wrongdoing. In other words, access to illegal drugs "touches on the corpus delicti" while access to one's child does not. Faciane, in not considering the inadmissible hearsay on the corroboration issue, also apparently assumed that the corroborative evidence must be both admissible and admitted.

c. United States v. Duvall

Against this backdrop, the Duvall case (39) is interesting in that it challenged a previously held assumption that the phrase, "independent evidence, either direct or circumstantial, has been introduced," actually required that the corroborative evidence be properly admitted and considered by the finder of fact. (40) Duvall confessed to use of marijuana with a friend. The government was unsuccessful in getting testimonial immunity for the friend and sought at trial to have the friend's corroborative statement admitted as a statement against interest. The military judge did not allow the trial counsel to provide the hearsay statement to the members, apparently believing this unnecessary, as he viewed the corroboration question as one on which he could rule under M.R.E. 104(a), which allows a military judge to consider otherwise inadmissible evidence with regard to predicate facts. (41) The Air Force Court upheld the military judge's reasoning on what it considered to be an issue of first impression, holding, "The purpose of the corroboration rule is advanced by evidence, any evidence, tending to show that the confession is true, regardless of whether that evidence is itself admissible." (42) The Court attempted to distinguish Faciane on the basis that Faciane was a bench trial, reasoning that in such a case, "Because the evidence which the Court of Military Appeals ruled inadmissible was not only used for corroboration, but on the merits, the integrity of the conviction itself was impeached." (43) Reading the opinion as a whole, it is clear that the Air Force Court's attempt to narrowly interpret the rule was motivated by the majority's view that any other application of the rule unnecessarily removed relevant evidence from the purview of the fact finder. The Court seemed to indicate its impression that such developments as the Miranda rule had rendered many of the concerns underlying the corroboration rule obsolete. (44)

This holding would, however, not long survive. The Court of Appeals for the Armed Forces granted a petition for review in the case and Judge Effron, in his majority opinion, settled the issue holding, "Because the military judge's ruling in this case precluded the members from considering any corroborating evidence in deciding what weight to give appellant's

confession, the findings that are based solely on the confession must be set aside." (45) In addition to enforcing the plain meaning of the phrase "has been introduced," the Court refuted the Air Force Court's underlying assumption that concern regarding false confessions is an anachronistic relic of less civilized times. (46) So, not only has the requirement that the corroborative evidence be admissible been definitively settled, four justices of the Court of Appeals for the Armed Forces apparently believed the evils against which the rule was intended are still of concern.

2. Air Force Decisions

a. United States v. Greenberg

The Air Force Court decided one of the first cases to find corroboration lacking under the Opper rule in its 1969 decision in United States v. Greenberg. (47) In that case, the accused pied guilty to drug use and larceny of a significant amount of morphine, but was found guilty contrary to his pleas of marijuana use and possession. The evidence supporting his conviction of these latter two offenses consisted of marijuana seized from his dormitory room and the testimony of an eyewitness who observed the accused smoke a cigarette on the night in question and observed that the odor of the smoke was "harsher than ordinary cigarette smoke." The witness had never smelled burning marijuana. (48) After the Court ruled the fruits of the search should have been suppressed, it specifically quoted the Opper holding, but found the witness testimony insufficient standing alone to corroborate the confession, referring to it as "mere suspicion and conjecture" failing to "indicate the type of offense that was probably committed." (49) Interestingly, this case has only been cited as authority once on an unrelated issue. Specifically, it's assumption that the corroborative evidence must be admissible was not discussed in the Duvall case, which, as stated above, considered this an issue of first impression.

b. United States v. Springer

In Springer (50) the Air Force considered a multiple larceny case in which it addressed sufficiency of the corroboration of admissions to several larcenies. In that case, the accused stipulated to various facts. As to certain items, the stipulation admitted that the items seized from the accused belonged to other individuals and were properly placed into the mails. As to these items, the Court found corroboration sufficient. As to the remaining items, the accused stipulated only that the items were turned over by the accused to the Air Force Office of Special Investigations. The Court found this to be insufficient. (51) Though the court discussed and rejected the idea that the offenses for which sufficient corroboration existed could corroborate the remaining offenses, it stopped short of adopting a per se rule, commenting, "We do believe, however, that under proper circumstances, evidence of similar offenses could provide the required corroboration such as when the items are alike or taken over a short period of time." (52) In so holding, the Court specifically mentioned the holding of the Court of Military Appeals in Seigle where similar items were taken over a short period of time. (53)

c. United States v. Lowery

In Lowery, (54) the Air Force Court, in its most recent published decision to find corroboration insufficient, reviewed a conviction for several offenses, but the one of relevance to the present discussion was a charge of acting as accessory after the fact to the larceny of a camera. The accused admitted to being at the party from which the camera was stolen and to assisting his friends by allowing them to conceal the camera, which he knew to be stolen, in the trunk of his car. The corroborative evidence was a stipulation of expected testimony of the victim of the theft. His stipulated testimony related that he was at the party, fell asleep knowing the location of his camera and awoke to find it missing, with one of the accused's cohorts being the only individual with access to the camera in the meantime. In finding the corroboration insufficient, the Air Force Court looked to the elements of the offense of accessory after the fact and concluded there was no corroboration of the accused's admission that he knew the camera to be stolen. (55) The Court did not engage in a lengthy analysis, but did cite without discussion the Army's Dake decision (56) and the Springer case discussed supra. While this could be seen as a reversion back to the old "elements" test, it is probably better understood as a holding that for the purposes of an inchoate crime such as accessory after the fact, the mens rea element is particularly important or stated differently the gravamen of the offense. In fact, though Smith was not cited, it nonetheless seems to have been followed in that the crime in question was one without a tangible corpus delicti and the evidence was found insufficient in that it failed to implicate the accused in order to demonstrate that the crime alleged had been committed.

3. Army Decisions

a. United States v. Holler

Holler (57) was the Army's first corroboration case following the adoption of the 1969 Manual. In that case, the accused was found on a military installation in possession of marijuana and with a pipe, the use of which could be tied to the accused. The pipe contained some "forbidden residue." (58) He subsequently confessed to bringing the marijuana onto the installation and using it. Significantly, the accused was not charged with possession, but instead with introduction onto a military installation and use. The court found the evidence sufficient to corroborate the confession to introduction, reasoning that a military installation is an "an extremely unlikely locus for domestic production." (59) As to the use specification, however, the Army Court found the possession to be insufficient corroboration. In reaching this decision, the Court analyzed military precedent prior the 1969 Manual. Though the government appellate counsel urged the Court to abandon previous precedent requiting the corroborative evidence to connect the accused to the crime, the Court avoided the issue, concluding, "Even if possession at one time and place would sufficiently corroborate the 'essential facts' of possession at a different time and in a different place, we hold that such possession is insufficient to corroborate use at a different time and different place." (60) In arriving at this decision, the Court noted the ambiguity introduced by the "essential facts" language of the new rule, stating, "This term has been used both as a synonym for "elements of the offense and for some web of facts and circumstances less than the essential elements of an offense." (61)

b. United States v. Gaines

The Army Court next addressed the issue in the Gaines case. (62) The specification at issue in that case charged the accused with felony-murder for a killing which allegedly took place during the course of a robbery. The Court found insufficient independent evidence of the robbery aspect of the felony-murder and accordingly modified the findings to the lesser included offense of involuntary manslaughter. The Court's decision in that case turned on the fact that the corroborative evidence (that the victim previously possessed a large sum of money and that his empty wallet was found some distance from the body) was established through inadmissible hearsay to which the defense made a timely objection. (63) So, this case turned on the admissibility, not the sufficiency of the corroborative evidence.

c. United States v. Shavers

The Army Court revisited the Opper rule in the Shavers case. (64) In that case, an informant saw the accused take possession of "30 plates" of cocaine. (65) He subsequently confessed not only to the purchase but also to selling the cocaine to several regular customers. In the course of his interrogation, it was discovered that he maintained a customer list, which he voluntarily provided to investigators. At trial, the government sought to corroborate his confession with the customer list, which was admitted, over defense objection, as a record of a regularly conducted activity. The Army Court found the corroboration insufficient to accept the confession as to the sale or transfer of the cocaine, holding that the customer list should not have been admitted, because the accused's otherwise uncorroborated confession was used to establish the foundation of the list. (66) In quoting the Opper decision, the Court noted the illusory nature of the distinction between the old corpus delicti rule and that enunciated in Opper, stating, "in the instant case, the distinction tends to blur as the 'essential facts' to be corroborated are the acts of the appellant in selling or transferring what he believed to be cocaine." (67) So, this case is notable in that (1) it enforces the requirement that a confession cannot be corroborated with another uncorroborated confession, (2) it requires that corroborative evidence be admissible and (3) it indicates the survival of at least some vestige of the corpus delicti requirement embodied in the "essential facts" language of the rule.

d. United States v. Dake

In Dake, (68) the accused admitted to violating a general order which prohibited the use of the military mail system for commercial or business reasons, doing so in furtherance of a conspiracy with a Sergeant Hickel. The evidence, to include customs records and the items themselves indicated that the accused mailed several expensive electronics items from Japan to various members of his stateside unit. The Army Court found this evidence sufficient to corroborate violation of the order, but in the absence of any independent evidence of an agreement with Sergeant Hickel, the Court was unwilling to find the conspiracy charge adequately corroborated. (69) In essence, the Court found that the agreement was an "essential fact" of the conspiracy, requiring independent evidence.

e. United States v. Loewen

The Army Court's next significant corroboration decision, Loewen, (70) was one of the most interesting. In that case, the accused admitted to stealing 26 prescription forms and forging prescriptions for himself and his wife, which they subsequently presented to the base pharmacy to receive various prescription medications. The pharmacy received the 26 prescriptions, 17 of which listed the accused as the patient and the remainder of which listed his wife. Surprisingly, the Court found, "Applying Mil.R.Evid. 304(g) to the appellant's confession in this case, we find it uncorroborated, even though a tangible corpus delicti, i.e., a forgery by someone, was established by independent evidence." (71) In reaching its decision, the Court placed great weight on the handwriting analysis of the prescription forms, which concluded the accused was likely not the author of a significant number of the signatures, contradicting his admission to signing all of them. In reaching its legal conclusions, the Court adopted one of the broadest interpretations of the military application of the Smith and Opper decisions to date. The Court cited Smith for the proposition that the Smith and Opper rules could actually be more onerous than the old corpus delicti rule. The Court concluded that the new rule "extends the corroboration requirement to include the identity of the accused as the perpetrator, an element not required to be corroborated under the old corpus delicti rule." (72) The Court made no note that this holding from the Smith case was with regard only to offenses without a tangible corpus delicti. Despite the remarkable nature of this decision, it has not taken root as precedent. In fact, it has not been cited in a single case.

f. United States v. Egan

In Egan, (73) the accused admitted to the use of various drugs and to the distribution of Ecstasy. At trial, he was found guilty of the various use specifications, and as to the distribution was, found guilty of the lesser included offense of attempted distribution. His confession to the distribution was corroborated by the out-of-court statements of two accomplices and by the testimony of a local narcotics agent who identified one of the accomplices as active in the drug trade and the other as a known drug user. The officer also confirmed that the prices the appellant claimed to have paid for the pills was consistent with the market price in the area. Finally, the accused's address book was seized and contained phone numbers for the individuals and the establishment mentioned in his confession. (74) After the Army Court ruled that the hearsay statements of the accomplices were improperly admitted, it found the remaining corroborative evidence insufficient to corroborate the confession, stating, "Such evidence of the appellant's involvement in the local drug scene and his familiarity with London ..., while certainly suspicious, does not justify an inference that the appellant could obtain ecstasy in London and had a propensity to distribute ecstasy to his fellow users." (75) Of note, the corroboration of the use specifications is not discussed in the opinion, as it apparently was not challenged at trial. Clearly, however, though the Court did not discuss the possible application of M.R.E. 404(b), it did not feel the evidence of use was sufficient to corroborate the attempted distribution. This holding is interesting in that the detective's testimony certainly established that the accused had access to the very drug he admitted to distributing, and his use established a propensity to possess it. Nonetheless, the appellant's confession alone was not sufficient to subject him to liability for attempted distribution. In analyzing the essential facts, the Court relied on the quotation from Smith, requiring that there be substantial independent evidence the offense was committed. (76)

4. Navy/Marine Corps Decisions

a. United States v. Kelly

In the Kelly case, (77) the Navy-Marine Corps Court overturned the conviction based on ineffective assistance of counsel where defense counsel, "advised appellant to waive the Article 32 investigation and to plead guilty to all charges and specifications knowing that at the time of that advice and at the time of the appellant's waiver of the Article 32 investigation that the Government could not corroborate the drug use and distribution offenses." (78) While this is an extreme case where the ineffective assistance issue was actually raised by trial defense counsel in his post-trial clemency submissions, (79) it is an indication that a corroboration issue not addressed at trial may come back to haunt all of the parties, a fully provident guilty plea notwithstanding. (80)

b. United States v. Harjak

Aside from Kelly, Harjak (81) is the only published Navy case in which corroboration was truly found lacking. It involved a father charged with sodomy and indecent acts upon his 10-year-old daughter. The evidence against him consisted chiefly of his confession and his daughter's out-of-court statement made to investigators and admitted under the residual hearsay exception to the hearsay rule. The investigating agent also testified that the accused's daughter provided the agent with a pair of her panties, which contained seminal fluid of someone with the same blood type as the accused. (82) Finally, the agent testified that when asked to explain the semen stain, the accused proffered that the victim had taken one of his condoms and poured the seminal fluid into her panties. (83) After the Court found the victim's hearsay statements were erroneously admitted, it found the remaining evidence insufficient corroboration even though they found the appellant's explanation absurd and the evidence as a whole "factually sufficient to sustain a conviction." (84)

This case prompts two observations. First, the Navy Court agreed with the trial judge's determination that the appellant's confessions were voluntary, thus enforcing the conclusion that the corroboration requirement is in addition to and more stringent than the voluntariness requirement. Secondly, the court's basis for finding the semen in the panties insufficient corroboration is not entirely clear. The Court refers at one point to this evidence as, "the NIS special agent's unobjected-to hearsay testimony about her taking the panties on the day in question...." (85) Though it is not entirely clear how testimony about the seizure of evidence is hearsay or why the Court didn't consider "unobjected-to hearsay" admissible, the Court's apparent determination that the evidence was inadmissible would negate the inference that this case could be cited for the rather remarkable proposition that the semen-stained panties were insufficient corroboration. Indeed, based on several of the foregoing decisions, it appears that, in general, appellate courts are much more comfortable enforcing the corroboration rule in cases where they have ruled a significant measure of the government's evidence inadmissible. One may wonder whether the decision here would have been the same had the government presented only the confession and the panties in its case. In fact, this case is perhaps best seen as an indication of the unpredictability brought about by the rather nebulous and enigmatic standards introduced by Opper and Smith.

5. Discussion

Published decisions in which corroboration has been found insufficient are rare. In fact, even among those appearing in this discussion, a distinct majority involve cases where substantial corroborative evidence admitted at trial was subsequently found to be inadmissible, leaving the court to determine whether the remaining remnants were sufficient to sustain the conviction. While logically, sufficient corroborative evidence should be the same regardless of the appellate posture of the case, one can certainly understand an appellate court's hesitancy in affirming a conviction after throwing out a significant portion of the evidence upon which it was based. However, looking at the underlying rationale of these decisions, they do provide meaningful analysis of the contours of the corroboration requirement.

The following major themes emerge from the cases analyzed above: First, it is now well-settled that the evidence required to corroborate a confession be admissible and admitted into evidence. Second, the corroboration requirement continues to be independent of and in addition to the requirement that confessions be voluntary. Third, the concern underlying the Smith and Opper decisions, that of false confessions be voluntarily made, continues despite some undercurrent of opinion to the contrary. And finally, some vestige of the corpus delicti rule in the "essential facts" language of MRE 304(g) seems to run through these cases. This is particularly apparent in cases such as Egan, where evidence of drug possession was held insufficient to corroborate a confession to distribution and Gaines, where a homicide combined with a tenuous connection to a robbery was insufficient to corroborate a confession to felony murder. These cases seem to keep alive the requirement dating back to the Daeche case that the corroborative evidence at least "touch on" the corpus delicti.

F. Corroboration Found Sufficient

Clearly, in a significant majority of corroboration cases decided under the Opper rule, the corroboration has been found to be sufficient. The analysis which follows, while it may not be as comprehensive as the previous discussion of cases where corroboration has been found insufficient, will analyze all of the reported Court of Military Appeals and Court of Appeals for the Armed Forces' cases on the issue and those published service court decisions that add significantly to the discussion or mark a possible difference of approach among the service courts.

1. Court of Military Appeals/Court of Appeals for the Armed Forces Decisions

a. United States v. Seigle

Interestingly, in its first substantive discussion of the rule adopted by the 1969 Manual, the Court of Military Appeals did not even cite the Smith and Opper decisions underlying the rule. (86) The facts of that case apparently presented issues the Court felt were sufficiently addressed by the text of the rule itself. In the Seigle case, the accused confessed to stealing several phonograph albums and a phonograph player from the Minot AFB Exchange over the course of several months. While several eyewitnesses saw him take albums during the charged time frame, there was no direct evidence that he took the phonograph. The accused, contemporaneous with his confession, turned the phonograph and the box it came in over to the Air Force Office of Special Investigations and the Exchange manager confirmed that the box bore an Exchange stock number and that the player was a type carried by the Exchange. The Court found the totality of the evidence sufficient to corroborate the confession. Specifically, they found, "Evidence that provides the basis for the inference that the phonograph, physically turned in by the appellant, was once a part of the stock of the Base Exchange, alongside appellant's observed theft of record albums, permit our finding that there was sufficient evidence that the confession was not made up by him with the intent to deceive." (87) Though Seigle was cited without discussion in some subsequent opinions, it seems at odds with subsequent decisions wherein evidence of certain offenses has been held insufficient to corroborate others.

b. United States v. White

White (88) was an appeal from a conviction for possession and sale of marijuana, where the bulk of the discussion dealt with the sufficiency of the evidence absent expert testimony to explain the results of the chemical analysis performed on the seized evidence. While the Court held against the accused on this issue, it went on to opine that even without the chemical analysis of the substance, the record contained ample evidence of the accused's guilt to include his confession which was corroborated by his in-court testimony that he sold the substance as marijuana, the accused's spontaneous statements during the commission of the offenses that the substance was marijuana and the testimony of the government agents who were familiar with marijuana and testified the substance appeared to be marijuana. (89)

c. United States v. Yates

The Court of Military Appeals' next application of the Smith and Opper rules would prove to be a bit more challenging. In Yates, (90) the investigation began when the accused's two-year-old daughter was diagnosed with gonorrhea. Though both the accused and his wife tested negative for the disease, the accused subsequently admitted to having extramarital sex with a "bar girl" on a TDY to the Philippines and further admitted to masturbating in the presence of his daughter and ejaculating on her stomach. At trial, in a prosecution for rape, carnal knowledge, sodomy and indecent acts with a child, the judge suppressed the accused's two confessions for want of corroboration on the basis that the corroborative evidence did not identify the accused as the perpetrator. The Navy-Marine Corps Court reversed and remanded, and the Court of Military Appeals affirmed the Navy Court's decision. In support of its decision, the Court cited the U.S. Supreme Court case of Wong Sun v. United States, (91) which held, "Where the crime involves physical damage to person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable." (92) Of note, neither the Navy-Marine Corp Court nor the Court of Military Appeals opined the evidence was sufficient to corroborate the accused's confession; they merely held that the military judge applied an incorrect legal standard and remanded for further action. (93) While Chief Judge Everrett, in his concurring opinion, would have remanded with instructions that the evidence was insufficient to corroborate certain of the charged offenses, the majority was comfortable leaving that decision to the military judge. (94) So, while this case may or may not stand for the proposition that a child victim contracting gonorrhea is sufficient to corroborate a confession to a number of sexual acts with the child, it clearly adopts the Wong Sun holding, which requires that, in cases of physical injury, there must be at least some independent evidence of the injury itself. In essence, this is a straightforward application of the traditional meaning of the term corpus delicti: the "injury against whose occurrence the law is directed." (95) If one accepts that a toddler does not contract gonorrhea in the absence of some sort of sexual abuse, it is clear that while the independent evidence doesn't corroborate all of the elements, it does support the gravamen of at least one of the charged offenses, or in other words the "essential facts" necessary to establish the offense.

d. United States v. Yeoman

One of the most often cited cases on the military interpretation of the Opper rule is the Court of Military Appeals' decision in United States v. Yeoman. (96) The Yeoman case was based on a very straightforward fact pattern. The accused admitted to stealing a cassette case and several cassette tapes. He also led his platoon leader to a locker containing a cassette case and several cassettes bearing the accused's fingerprints, whereupon the tapes were retrieved and returned to their owner. The victim was not called as a witness. At issue in the case, was whether the additional corroborative evidence, an "Incident/Complaint Worksheet" was properly admitted as a business record. The worksheet was admitted at trial for the limited purpose of establishing that a larceny was reported. The Court of Military Appeals avoided the evidentiary issue by ruling that the remaining evidence was abundantly sufficient to corroborate the confession, rendering any error harmless. (97) In discussing the evidence necessary to raise an inference of the truthfulness of the confession, the Court stated in an oft-quoted passage, "Moreover, 'the quantum of evidence' needed to raise such an inference is 'slight.'" (98) It is interesting that a case in which the confession was so abundantly corroborated should become a leading case for the proposition of how little is required. Perhaps this decision is best understood in light of the historical application of the rule. In a larceny case, the corpus delicti is obviously the spoils of the larceny. Thus, in a very straightforward sense the accused was found in possession of these spoils, thus corroborating his confession to taking them. However, looking at the elements of the offense, absent the Incident/Complaint Worksheet, the only evidence of a taking or of a victim with a greater right than the accused to these spoils is the platoon leader's delivery of the items to the alleged victim after seizing them. Clearly, in a jurisdiction requiring corroboration of each element beyond a reasonable doubt or even by a preponderance of the evidence, this case would fail. However, under MRE 304(g), there is some evidence to corroborate all of the "essential facts" and the corroborative evidence as a whole thus establishes the trustworthiness of the confession. Indeed, such a reading would seem the only way to reconcile the "essential facts" language with the statement that the required quantum of evidence is "slight."

e. United States v. Melvin

The other case often cited regarding the requisite quantum of corroborative evidence is Melvin, (99) in which the standard was described as "very slight." (100) In support of this conclusion, the Court cited portions of the Smith and Opper holdings, both citations containing language requiring "substantial independent evidence." (101) Oddly, the Court made no attempt to reconcile its "very slight" with the Supreme Court's "substantial." Furthermore, in light of the apparently abundant corroboration, the necessity for so minimizing the standard is not abundantly clear. In the case, the accused admitted to smoking heroin a total of 20 times over the previous four months. He also identified his dealer and the particulars of how he smoked the heroin. He was found in possession of heroin cigarettes and drinking straws with heroin on them, and his dealer was verified to be active in the drug trade. (102) The court found these facts to amply corroborate the confession, however, Chief Judge Everett in a concurring opinion, opined the evidence was sufficient only to corroborate a single use, not the multiple uses to which the accused admitted. (103) Reconciling this holding with that in Rounds presents some interesting questions. While at least the two-judge majority in Melvin seemed to believe evidence of a one-time drug possession is sufficient to corroborate multiple uses, this holding differs from Rounds in that Melvin admitted to using the same drug, from the same source and in the same manner, whereas Rounds only admitted to using cocaine on the one occasion in a different city and with different individuals. Additionally, one might question Egan's holding that possession was insufficient to corroborate attempted distribution. Again, the Melvin court seemed to focus on the similarity of the many described incidents, which the court found "dovetail[ed}" with the corroborative evidence. So, although this case could be read for the proposition that evidence of a single possession is sufficient to corroborate multiple uses, it may also be read more narrowly as a holding that the particular facts of the case presented, in essence, an ongoing and consistently followed course of conduct. Interestingly, the Court felt compelled to mention that although the case was not decided on the basis of waiver, it very well could have been, based on the lack of objection at trial to the absence of corroboration. (104) While this may have no meaning at all, it might also explain the Court's decision to resolve the close call regarding multiple uses against the accused.

f. United States v. Hughes

In the Hughes (105) case, the accused admitted to using marijuana and the government sought to corroborate his confession with his wife's out-of-court statement that she had seen him use marijuana. The accused's wife refused to testify at trial, citing the spousal privilege, and was accordingly found unavailable. After losing on hearsay and Sixth Amendment challenges, the accused asserted the wife's statement was insufficient because it contained no information to support the wife's conclusion that what she had seen the accused use was marijuana. The Court made short work of the issue by looking to the totality of the statement and the circumstances attendant to its taking. The Court first drew credibility from the fact that when the wife was approached about illegal drug use, she was the first to mention marijuana. Furthermore, the wife described the incident to which she referred, stating that when it occurred she "threw a fit," whereupon the accused stopped using. The Court saw this as strongly supporting an inference that both the wife and husband knew what the substance in question was. (106) This seems to be a straightforward application of the applicable case law. Even though the wife's statement does not corroborate all of the elements, it does corroborate the essential fact of marijuana use even though standing alone it is debatable whether it would prove the offense even by a preponderance of the evidence.

g. United States v. Maio

Maio (107) is another leading military case on the issue of corroboration. The accused in the case used and possessed placebo methamphetamine with an undercover agent and in the course of that use, admitted to several uses of actual methamphetamine with a friend of his. Later, after rights advisement, the accused admitted to using and possessing the placebo and to the previously admitted uses of amphetamine. At trial, he pled guilty to attempted use and possession and entered conditional guilty pleas to the actual use, preserving the issue of the corroboration of his confession for appellate review. The Air Force Court affirmed and the Court of Military Appeals granted review. (108) The majority opinion found the confession adequately corroborated by the previous spontaneous admission to the undercover agent, the undercover agent's testimony that he observed the accused's putative supplier use methamphetamine on previous occasions, a written statement from the undercover agent that the accused's roommate admitted to using with the accused and the agent's testimony that he observed the accused use the placebo methamphetamine. (109) Judges Cox and Wiss each filed concurring opinions. Judge Cox, in cautioning that the case should not be applied beyond its particular facts, believed the spontaneous admission was sufficient to corroborate for purposes of admissibility, but opined that there would not have been sufficient evidence to sustain a conviction had the case gone to trial on the merits, because, "there is not a scintilla of evidence that the crime in question occurred--apart from appellant's own words." (110) In essence, Judge Cox stated that although the admission to the undercover agent, not being an interrogation, did not require corroboration and thus could be used to corroborate the other statement, some further application of the corroboration rule is appropriate in considering the sufficiency of the evidence. By implication, Judge Cox rejects the validity of the evidence of the placebo use and possession as sufficient to corroborate prior uses. Judge Wiss, in a brief concurring opinion, cautions against misapplying the "slight" standard enunciated in Yeoman and Melvin, writing, "While the quantity of the independent evidence need only be 'slight,' the quality of that evidence is the more critical focus as to the confession's reliability and, thus, admissibility." (111) This is the closest thing in the case law to an explanation of the apparent disconnect between the "slight" language of Yeoman and Melvin and the "substantial evidence" standard enunciated in Smith and Opper. Judge Wiss' formulation seems to hold that while the amount of evidence need only be slight, the quality must be substantial in its tendency to probatively corroborate the crime to which the confession was made.

h. United States v. Cottrill

Cottrill (112) involved an allegation that an active duty father sexually molested his daughter by inserting his finger into her vagina while bathing her. He initially claimed that the insertion was accidental, but later claimed that he did derive sexual gratification from it. Though the bulk of the opinion dealt with the accused's assertions that his confessions were involuntary and that the evidence was insufficient to establish intent to gratify sexual desires, after disposing of those issues, the Court dealt briefly with whether the confession was adequately corroborated. The corroborative evidence consisted of the testimony of the physician who treated the accused's daughter. According to the physician, the daughter while being examined stated that her "privates" hurt and that her daddy touched her privates. He further testified that the child had an abnormal hymenal opening. (113) The unanimous Court made short work of affirming the decisions below, holding, "This evidence tends to show that sexual injury was inflicted on appellant's daughter and supports appellant's pretrial admissions to the acts causing such injury." (114) Analyzing this case in the light of those which have gone before, it confirms that where the gravamen of the offense (in this case, sexual injury) has been corroborated, the accused can be convicted even though his confession provides the sole evidence as to other elements of the offense.

i. United States v. Baldwin

Baldwin resulted in three published decisions. It initially reached the Air Force Court of Criminal Appeals via a government appeal of the trial judge's ruling granting a motion to suppress the accused's confession. The Air Force Court originally affirmed the trial judge's decision, (115) but on en banc reconsideration, reversed course, finding the confession adequately corroborated. (116) Finally, the Court of Appeals for the Armed Forces granted review and affirmed the decision of the Air Force Court that the admission was adequately corroborated. (117) This case is best understood beginning with the Air Force Court's en banc rehearing. According to that decision, the accused admitted to molesting his daughter after his wife walked in on him covering their daughter with a blanket and apparently startled him, eliciting a look she had never seen before. Later in the evening, she found the accused in the floor crying whereupon he related to her his own personal history as a victim of child molestation. Thereafter, the accused moved out of the house, into the dormitories and began regularly consulting with a chaplain and a doctor on the base. The accused also apparently admitted to his mother that he had molested his daughter and outlined his plan to consult with a chaplain and counselor and turn himself in. He did turn himself in thereafter and gave a confession in essence mirroring the facts recounted above, adding certain details. These details included his motivation, marital difficulties and becoming aroused upon seeing his daughter's genitalia; the manner of the molestation, touching his daughter while masturbating and why he stopped, because his wife caught him. (118) The Air Force Court spent considerable effort criticizing the trial judge's finding that he was entitled to consider the absence of corpus delicti as a factor in determining whether the essential facts were sufficiently corroborated. They ultimately concluded the trial judge committed error in that, "[T]he military judge's ruling was based upon the absence of any evidence that the accused was seen committing the acts or that the child-victim exhibited physical or mental injury." (119) The Court went on to conclude, "The military judge should have concentrated on the requirements of the rule for independent, direct or circumstantial evidence, corroborating the essential facts admitted in the confession sufficiently to give rise to an inference of their truth." (120) Significantly, the words, "in the confession," do not appear in the rule, raising the question of whether this language represents a not-so-subtle shift in the interpretation of just what the words "essential facts" are meant to modify. While prior case law has seemed to require corroboration of those facts admitted which are essential to the offense charged, this interpretation seems to judge essentiality, not with regard to the offense, but rather with regard to the whole of the admission. The Court's ultimate conclusions seem to confirm this shift. The Court found the following facts corroborative: (1) the wife's testimony that the child routinely threw off her covers corroborates the accused's statement that he became aroused upon seeing her; (2) her testimony about walking in on him corroborates his account of the timing; (3) his reported startled look and flight from the room corroborates his feelings of guilt; and 4) the wife's testimony that the child thereafter slept with her and that the husband thereafter sought counseling are consistent with his confession. (121) The Court further considered the accused's confession to his mother to be proper corroboration because, as statements of a party opponent, they were, "statements offered under a rule of evidence other than that pertaining to the admissibility of admissions or confessions." (122) Finally, the court found a stipulation of expected testimony from the accused's therapist corroborated that the accused saw a chaplain and a therapist and that he had "problems" in his relationship with his daughter. (123) The Court then went on to conclude that "consciousness of guilt evidence" such as the accused's leaving his daughter's room, crying, leaving the marital home, seeking therapy, turning himself in and "voluntarily confessing" were themselves strong evidence of the truthfulness of the confession, perhaps exempting it from the need for corroboration altogether. (124) So, the Court, while chiding the military judge for considering that the absence of a corpus delicti as a factor in his decision, felt comfortable reasoning that the mere act of voluntarily confessing may be a consideration in dispensing with the need for corroboration altogether.

Not surprisingly, the Court of Appeals for the Armed Forces granted review of this decision on two issues: whether the Air Force Court erred by making factual findings in addition to those of the military judge, and whether the court properly used his uncorroborated admission to his mother to corroborate his confession to authorities. (125) The Court then avoided both of these issues by deciding the facts, as found by the trial judge, were sufficient corroboration. Specifically, the wife finding and startling the accused, her subsequently finding him crying on the floor and his contemporaneous admission of his being a molestation victim, and finally the accused's seeing a chaplain and then a therapist combined to adequately corroborate his confession.126 The Court did not discuss the Air Force Court's most far-reaching pronouncements, that there may be circumstances where the corroboration requirement can be dispensed with or that the accused's admission to his mother would be sufficient corroboration. Furthermore, the higher court apparently interpreted the phrase, "essential facts" in relation to the offense, not the confession, as the Air Force opinion intimated.

This case is significant in several respects. First, the Court cited to its earlier holding in Cottrill, that it is not necessary to corroborate "all the elements of an offense or even the corpus delicti of the confessed offense." (127) Interestingly, in Cottrill there was arguably corpus delicti evidence embodied in the testimony of the physician who described the victim's abnormal hymenal opening. If there is a commonality between these cases, however, it is that circumstantial evidence of abuse, undoubtedly insufficient to support conviction on its own, was held to be sufficient corroboration of a confession bearing several independent indicia of reliability. Second, to the extent the Air Force Court remains of the same mindset, this case, especially its dicta, would seem to indicate a hesitancy by the Air Force Court to suppress an otherwise voluntary confession, going so far as to conclude, the plain language of MRE 304(g) notwithstanding, that there may be confessions so reliable they require no corroboration.

j. United States v. Seay

In Seay (128) the accused admitted that he and an accomplice strangled their victim, PFC Jason Chafin, and left his body in a field. A few days after the murder, after hearing that Chafin had cash on him, they returned to the scene, took the victim's wallet, split the cash and discarded the wallet. Chafin remained missing for four months until hunters happened across his body, precipitating the investigation which eventually produced the accused's confession. While the victim's body provided obvious corroboration for the murder, the issue in the case was whether the confession to the larceny was adequately corroborated. In a three-to-two decision, the Court of Appeals for the Armed Forces found that it was. Specifically, the majority stated, "When a person confesses to participation in the larceny of a wallet, it is reasonable to infer the truth of the confession from the fact that the victim named in the confession knew the Appellant, died as a result of foul play, was found in a concealed place, and did not have a wallet at the time or thereafter."129 Judge Erdmann and Judge Baker concurred in part and dissented in part. They dissented specifically from the portion of the case relating to corroboration. Judge Erdmann, joined by Judge Baker, wrote, "Relying on these inferences as independent evidence, the majority opinion stretches the corroboration requirement beyond the breaking point." The concurrence continued, "Apart from the confession itself, no evidence suggests that Chafin ever possessed a wallet at all, much less that he was carrying one at the time of his murder." Clearly, the sharply divided Court is an indication that this case resides at the lower limit of sufficiency for corroborative evidence. In fact, given that the court has not decided a close corroboration case since and that two members of the majority have since left the court, while the two concurring judges remain, the extent to which this decision marks a predictable boundary can be questioned. In looking more closely at the decision, it probably raises more questions than it answers. Clearly, as to the larceny, the missing wallet would have to be an "essential fact" and the only evidence corroborating this fact is the absence of a wallet in the vicinity of the corpse. While the concurring judges would hold this insufficient, at least absent evidence the victim carried a wallet, the majority opinion did not specifically delineate whether its decision was predicated on the common sense reality that men (and perhaps especially military men traveling off of a military installation) generally do carry wallets or whether it was intending to substantially relax the corroboration requirement. In reality, the fact lending greatest credence to the accused's confession is his amply corroborated admission to far more serious misconduct. That the Court did not even entertain this line of reasoning, seems to be an implicit affirmation that the "essential facts" with regard to additional offenses are necessarily those facts which differentiate those offenses from those which are adequately corroborated. In essence, one corroborated confession still cannot be used to bootstrap in one which is inadequately corroborated.

k. United States v. Arnold

The Court of Appeals for the Armed Forces' most recent corroboration case was a unanimous decision based on a much simpler issue. In Arnold, (130) the accused confessed to distributing Ecstasy and his confession was corroborated at trial by one of his peers to whom he distributed the drug. The issue on appeal was whether the corroborative testimony was sufficiently independent of the confession. The issue likely would not have presented itself except for testimony of record indicating that the corroborating witness was shown the accused's confession the day before trial. Notwithstanding the possible taint of the witness, the court had no difficulty concluding as a matter of fact that the witness was testifying from his own independent recollection, making for an easy decision to affirm the decisions below. (131)

2. Air Force Decisions

a. United States v. Smith

In the four years after the incorporation of the Opper rule into the Manual for Courts Martial, the service courts saw several cases where confessions were at issue. One of the first, heard by the Air Force Court, was the Smith case. (132) Although Smith dealt primarily with the sufficiency of Miranda warnings provided to the accused prior to his confession, the corroboration issue was addressed briefly at the close of the opinion. Smith was accused of and admitted to stealing several M-16 rifles from a loading dock at Clark Air Base, The Republic of the Philippines. The primary corroborative evidence established that the guns were shipped, but while in transit disappeared from the Clark Air Base loading dock. The Court wasted few words affirming the conviction, concluding, "the Government presented substantial independent evidence to establish the trustworthiness of the essential facts set out in the accused's statement, even though such evidence might not have been sufficient under the 1951 Manual rule to establish a corpus delicti." (133) This case established what may be one of the few well-settled precepts in military corroboration jurisprudence; that a confession to larceny is sufficiently corroborated by evidence that the property in question went missing under suspicious circumstances which dovetailed in time and place with the confession.

b. United States v. Olesiak

In Olesiak, (134) the Air Force Court reinforced its holding in Smith. In this case, instead of pilfered rifles, the stolen property consisted of cassette tapes. Again, the property disappeared off of the back of a loading dock to which the accused had access, and the accused was later found in possession of identical property and eventually confessed to taking the stolen property from the loading dock in question. The Court had little difficulty concluding, "The testimony and documents which proved that two cartons were missing, considered in their entirety, adequately established that an unauthorized taking probably occurred at some point during the shipment." (135)

c. United States v. Richards

Airman Basic Richards was charged with several offenses, but the two to which the corroboration issue pertained were larceny and amphetamine use. (136) In the course of being questioned about the larceny of a television, the accused stated he didn't remember stealing anything because he was high on Lysergic Acid Diethylamide (LSD) at the time. Later, in a written statement, he modified his position, claiming a lack of memory due to the fact he was "under the influence of [speed]." (137) At trial, he disputed the admissibility of this statement on the amphetamine use specification. The government, however, contended that the statement was corroborated by the testimony of an Airman Hopkins, who observed at the time of apprehension that the accused showed several symptoms of recent amphetamine use. Based on the fact that Airman Hopkins had received Security Police training on how to recognize suspected amphetamine users, the court found his opinion sufficient to corroborate the accused's admission. (138) In reaching this conclusion, the Court incorporated a legal precept pre-dating the adoption of the 1969 Manual that, "When a specification alleges the use of a drug on a specific date, there must be some evidence, aside from the accused's confession, that he used the drug on that date." (139)

d. United States v. Baran

Baran (140) represents the first in a series of Air Force cases where the Air Force Court has taken an increasingly narrow view of the corroboration rule. The case arose out of a drinking game in the barracks which culminated in rape allegations against several airmen, all of whom apparently had sexual intercourse with another airman whose level of consciousness was at issue. In Baran's case, however, an additional issue was the sufficiency of the evidence purportedly corroborating his admission to having sexual intercourse with the alleged victim. Baran gave a detailed confession, and the government was able to corroborate many of the facts contained in it, to include his walking out of the alleged victim's room with a camera, carrying his pants. There was, however, no one else present in the room when the sexual intercourse took place, and the alleged victim, though she remembered waking up while having sex with another of the airmen, had no recollection of having sex with the accused. (141) The Court found the corroboration of the surrounding circumstances sufficient, holding, "we find sufficient circumstantial evidence from which it can properly be inferred that appellant was being truthful when he said he had sexual intercourse with the victim." (142) The Court continued, "The fact that there are no witnesses who can provide direct evidence that they saw an unconscious or incapacitated victim being raped does not prevent the government from raising 'an inference of the truth of the essential facts admitted' in an accused's statement." (143) This particular quotation is interesting in where the Air Force Court chose to end its direct quotation, finishing the statement of the law with its own phrase, "in an accused's statement." In so doing, the Court seemed to take the view that corroborating several elements of the statement, whether or not they are essential to proof of the underlying offense, is sufficient to corroborate the entire statement, even if there is no evidence to directly corroborate the accused's admission to the gravamen of the offense, i.e. sexual intercourse. Interestingly, the Court did not discuss the provision of MRE 304(g) which provides, "If the independent evidence raises an inference of 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 independent evidence." It is difficult to reconcile the Air Force Court's contention, that corroborating parts of a confession in effect corroborates the whole, with the Rule's underlying premise that only those essential facts independently corroborated should be admitted against the accused. One final observation with regard to this case is in order. The case is not binding precedent on the corroboration issue, because it was overturned on other grounds. The Court of Military Appeals reversed and remanded without discussion of the corroboration issue, because the Air Force Court failed to consider the sufficiency of the evidence to refute the defense of mistake of fact as to consent, and the Air Force Court subsequently dismissed the case for want of sufficient evidence. (144) The case is nonetheless notable in marking a line of reasoning to which the Air Force Court would return over the ensuing years.

e. United States v. Mitchell

Mitchell (145) arose from a "black marketing" scheme. The accused admitted to conspiring with another service member to "black market" vehicles, purchasing seven vehicles in furtherance of the scheme. He further admitted that his co-conspirator would work with a connection to remove the vehicles from the Merchandise Control Office records, which would allow the vehicles to be sold freely. The trial judge found insufficient corroboration of the conspiracy, but allowed the confession as to the black marketing charge even though evidence introduced at trial only implicated the accused as to two of the seven vehicles. (146) The Court affirmed the conviction, while admitting that the available guidance was sparse. Though the Court did not detail its reasoning, it cited the Melvin (147) and Yates (148) cases. Viewing all of these cases, it seems that though there are cases where corroborating part of a course of conduct is sufficient to corroborate the entire course of conduct, there is little useful guidance regarding what standard to apply.

f. United States v. Foley

The corroboration discussion in Foley (149) is almost a passing reference in a lengthy opinion dealing with irregularities in the investigation and forwarding of the charges. The corroboration issue related to the accused's admission to performing oral sex on a female airman (he was also charged with raping her, but was found guilty of the lesser included offense of indecent acts). Though he was charged with sodomy by force, he was found guilty of only consensual sodomy. To corroborate his admission, the "victim" testified that she awoke to find the accused naked in her bed; that he placed her hand on his penis and that he then attempted to have sexual intercourse with her. Though she had no recollection of him performing oral sex on her, she did recall moistness in her vagina. (150) The Court's holding in its entirety reads, "It is now very clear that not much corroborating information is required, and there is ample corroboration--even of the oral sex that the victim did not recall--to warrant denial of the suppression motion." (151) Though the Court's treatment of this as an issue meriting only minimal discussion would seem to indicate the answer, it is not clear whether, absent the "victim's" perceived moistness, the corroboration still would have been sufficient, as then there would have been no independent evidence of the gravamen of the sodomy offense.

g. United States v. McCastle

McCastle (152) presents a factual scenario quite similar to that analyzed by the Army Court in Egan. (153) Airman First Class McCastle admitted to investigators that he purchased and used crack cocaine and described the location, the dealer and the dealer's vehicle. The corroborative evidence consisted of the testimony of two investigators that the apartment complex where the accused admitted to the purchase was known as a place where crack cocaine was sold and that the description of the dealer and his vehicle matched the description of a well-known, thrice-convicted crack cocaine dealer. Though the bulk of the discussion dealt with the issue of whether McCastle's trial defense counsel was ineffective in foregoing a motion to suppress his confession as the fruit of a command-directed urinalysis, which would render it inadmissible per Air Force Regulation, the Court affirmed on the corroboration issue without significant discussion, finding the corroborative evidence "sufficient to establish the trustworthiness of McCastle's confession.... (154) The Air Force Court did not cite Smith or Opper, thus it is not clear whether the language from Smith, which the Army Court would later rely on in overturning Egan was even considered. Of note, however, the Army Court in Egan found familiarity with the local drug scene insufficient to corroborate distribution in a case where the corroboration of use was not challenged. (155) Against that backdrop, a reasonable harmonizing interpretation would be that familiarity (at least as intimate as that indicated in the present case) with the local drug scene may be sufficient to corroborate admissions to possession and use, but not to the additional "essential facts" necessary to prove distribution. It is noteworthy that the case was affirmed by the Court of Appeals for the Armed Forces, which only mentioned the ill-fated corroboration motion in passing. (156)

h. United States v. Lawrence

In Lawrence, (157) the accused confessed to using cocaine four times over a two-month period. Contemporaneous with his confession, he submitted to a urinalysis which thereafter tested positive for a cocaine metabolite. At trial, he moved to suppress the confession, contending that the urinalysis only corroborated a single use. The ultimate holding of the Air Force Court was based on the simple fact that there was more to corroborate the confession than the urinalysis. Testimony in the case established that during the charged timeframe, his duty performance started to decline, he frequently reported late for duty and departed early, his apartment was unfurnished, and he began to have financial problems. (158) While one might argue this evidence is out of proportion to the accused's admission of only four uses, it represents an unremarkable application of the "slight evidence" standard which permeates military corroboration jurisprudence. Had the Court stopped there, the decision would be another in a line of unremarkable corroboration cases. However, the Court went on to comment, without significant discussion in dicta, that the urinalysis itself was sufficient as it corroborated what in the Court's view was the essential fact admitted, that the accused was a "recent cocaine user," (159) which raised the inference that the accused was telling the truth. Though the case was not reviewed by the Court of Appeals for the Armed Forces and has not subsequently been cited, this shift marked another in a line of Air Force cases making successively narrower interpretations of MRE 304(g)'s exclusions by focusing more on the confession than the offenses confessed.

i. United States v. Cucuzella

In Cucuzella (160) the corroboration issue was secondary to admissibility and sufficiency of evidence issues. Once those were disposed of, the Air Force Court had little difficulty concluding the victim's admissible hearsay statements, even though subsequently recanted, were sufficient to corroborate the accused's admission to a history of sexual abuse of his spouse. Of particular interest to the present discussion, however, was that the Air Force Court, as it did in its en banc decision in Baldwin, chose to paraphrase MRE 304(g) instead of quoting it, again arguably changing the rule's meaning. Specifically, the Court paraphrased the rule as follows: "To be admitted, an accused's confession must be corroborated by evidence sufficient to justify an inference that the essential facts of the confession are true." (161) As in Baldwin, the Air Force Court seems to be of the opinion that "essential" should be understood with relation to the confession, not the offense confessed. So understood, it is conceivable that a case could pass muster under the Air Force formulation simply by corroborating the various facts admitted, perhaps even in the absence of evidence directly corroborating the existence of the crime itself. As was the case in Baldwin, the Court of Appeals for the Armed Forces granted review, but in this particular case the corroboration issue was not even considered by the Court, once again giving no indication as to whether the Air Force's narrow interpretation of the rule will stand. (162)

3. Army Decisions

a. United States v. Johnson

The Army Court's first two decision following the adoption of the 1969 Manual found corroboration to be insufficient, arguably marking the Army Court, at least initially, as the one most broadly interpreting the Opper rule. In Johnson, (163) an interesting discussion led the Army Court to an interesting path in ultimately arriving at the conclusion that corroboration was sufficient. The accused was found guilty of several robberies to which he confessed. Though the corroboration issue was not presented to the Court, they saw fit to comment on it on their own motion. Specifically, the Court disagreed with the trial judge's conclusion that the new Manual provision did not require corroboration of the accused's identity, reasoning, "A literal reading of the 'Opper and Smith' rule shows that identity, just as other essential facts, requires corroboration." (164) While at first blush this may seem a remarkable conclusion in light of previous larceny-type cases where the fact that the property went missing under suspicious circumstances has been found adequate, upon further examination the difference is more one of semantics than of substance. Ultimately, the Johnson Court affirmed the conviction based on a finding that the accused's identity was sufficiently corroborated, not in the classic sense by eyewitness testimony, but circumstantially by the fact that, "The testimony of the witnesses agrees with the appellant's statement on the time and place of initial contact with the victims, the number of persons involved, location of the robberies, types of weapons used, the property taken from the victims, content of conversations, and other minor details." (165) In essence, the accused's confession and the other testimony dovetailed in so many particulars that the accused's identity as the perpetrator could not realistically be disputed.

b. United States v. Schuring

In Schuring, (166) a soldier confessed to strangling a "business woman" at her room outside the gates of Camp Humphries, Republic of Korea. The investigation began when another "business woman" reported to Korean police that the accused told her, "I kill woman." Apparently, the accused wanted to stay with the second woman to avoid suspicion that might result from his coming onto the installation after curfew, where base authorities were already responding to the murder. The victim was found nude, strangled with her own brassiere and with a fluorescent light bulb inserted into her vagina. Eventually, the accused was interviewed by the Criminal Investigative Division (CID) and confessed. The court found the confessions to the second woman and to the CID to be adequately corroborated by other evidence in the case, specifically that the condition of the body was consistent with the accused's description, the other evidence as to time and place were consistent with his account, and his pubic hair was found at the scene. (167) Interestingly, other aspects of the confession were actually contradicted by the bulk of evidence, but the court did not find this sufficient to vitiate the overall reliability of the confession as to the essential facts.

c. United States v. Poduszczak

Poduszezak (168) was a government appeal from a military judge's suppression of several admissions by the accused. Specifically, the accused, a nurse, admitted to coworkers that he had used Demerol taken from the hospital, some of which he had recorded on patient charts as wasted. In addition, he made a written confession to CID. The contents of this confession are not entirely clear from the record. It appears his admissions to using Demerol were redacted, as they were made inadmissible by an Army drug treatment regulation. The remainder of the confession apparently dealt with the accused's larceny of Demerol from the hospital by drawing excess pre-operative Demerol for patients going into surgery. The corroborative testimony consisted of witnesses who reviewed the accused's patient records and concluded they showed an abnormally high incidence of additional pre-operative medication of his patients. While the military judge found all of the admissions insufficiently corroborated, the Army Court reversed, but only as to the CID statement relating to larceny. Though the Court did not discuss its basis for upholding the trial judge's suppression of the admissions to use, it is reasonable to conclude the court found the corroborative evidence directly related to the "essential fact" of stealing the Demerol, but was unwilling to use it to corroborate the additional admissions that he used the drug. So, even the facts of access and wrongful possession, were not sufficient in the Army Court's mind to corroborate use. (169)

d. United States v. O'Rourke

The Army adopted the Yates/Wong Sun rule in the O'Rourke case. (170) In O'Rourke, the accused admitted to indecent acts with his six-year-old daughter consisting of digitally penetrating her in the course of bathing her. The corroboration consisted of the victim's out-of-court statements and the testimony of a physician about the victim's "abrasive injury" to her vagina, which was not caused by normal bodily functions. (171) While the Army Court made brief mention of the daughter's statements, it rested its conclusion on the physician's testimony. In so doing, it specifically relied on the Yates holding that evidence corroborating an injury which the accused admits to having inflicted is sufficient. (172)

4. Navy/Marine Corps Decisions

a. United States v. Hise

One of the Navy Court's first post-Opper corroboration cases required them to make a close call. In Hise, (173) the accused admitted to engaging in mutual, consensual sodomy with a fellow trainee, but when the trainee became forceful in trying to get the accused to submit to anal sodomy, the accused fought him off and eventually strangled him to death. The accused left the body in a field, but later became concerned about being associated with it and so returned to the scene with razor blades and slashed the wrists of the corpse in order to make the death appear to be a suicide. At trial, the accused was acquitted of murder, but was convicted of consensual sodomy. The Navy Court found that, though the evidence would clearly not have been sufficient under the previous rule, the accused's extremely accurate depiction of the scene where the "victim's" body was found along with testimony corroborating various other details of the accused's confession was sufficient under the new rule.

The Court reasoned that the impetus behind the Opper decision was that many crimes, such as consensual sodomy, do not result in a tangible injury, and "in the absence of testimony by an eye witness, the government has an almost impossible burden to corroborate a confession under the 'corpus delicti' rule." (174) Interestingly, the Court cited the Supreme Court's Smith decision for the proposition that the corroborating evidence, "is sufficient if it merely fortifies the truth of the confession without independently establishing the crime charged." (175) Significantly, the Court seemed to ignore the cardinal holding in Smith that where there is no tangible corpus delicti, "the corroborative evidence must implicate the accused in order to show that a crime has been committed." (176) In quoting Smith, the Court contrasted it with the Wong Sun case, (177) apparently reasoning that, because it is more difficult to corroborate a confession to a crime with no tangible corpus delicti, the standard should be relaxed. Reading the Smith case as a whole, and especially reading it in concert with Wong Sun leads to the exact opposite conclusion. In cases resulting in tangible injury, Wong Sun requires only proof that the injury occurred, while in cases with an intangible corpus delicti, Smith requires that the corroborative evidence tend to show not only that the crime was committed, but also "implicate the accused." The above should counsel caution in relying on this decision, which is especially difficult to resolve with the Navy Court's 1991 decision in Harjak. (178) Furthermore, because the alleged offense was committed prior to the effective date of the 1969 Manual, the Court of Military Appeals avoided the issue, but reversed and ordered the charge dismissed on the basis of the ex post facto application of the rule by the courts below.

b. United States v. Crider

Crider (179) arose from the stresses of combat in the Vietnam conflict. Crider belonged to a squad assigned to an exposed location under constant fire. After witnessing the death of a friend by sniper fire, he viciously beat and stabbed several civilian prisoners who had been taken into custody for apparently tipping off snipers as to the squad's location. The accused admitted to his squad-mates to stabbing two of the victims in the neck and bashing in the others' skulls with a rock. On appeal, the accused asserted that testimony that he stabbed two of the victims was insufficiently corroborated in that there was no independent evidence that the accused was ever in the possession of a knife. (180) The Court found this admission sufficiently corroborated by the abundant evidence of his squad-mates who independently witnessed small vignettes of the crime to include the accused striking one of the victims with a bamboo stick, his raising a blunt object over his head toward one of the victims, his being seen with a grain crusher and the observation of pools of blood and the apparently lifeless bodies of the victims. In the final analysis, the Court concluded, "The mere fact that a knife was not in evidence about the clearing does not rule out the presence of a cutting instrument." (181) While one might argue that failure to rule out a fact is a far cry from establishing it, reading the opinion as a whole, it can be read logically as concluding that where the killing is so abundantly corroborated, every detail as to the manner of the killing does not amount to an "essential fact."

c. United States v. Henken

Henken (182) dealt with a straightforward set of facts. The accused admitted to introduction of marijuana onto a military installation with intent to distribute. To corroborate these admissions, the government presented evidence of marijuana--seized on a military installation and connected to the accused--which was packaged for sale. The Court had little difficulty concluding the possession on an installation was sufficient to corroborate the admission as to the introduction and that the packaging was sufficient to corroborate intent to distribute. (183)

d. United States v. Allen

Allen (184) involved a prosecution for, among other offenses, passing classified information, chiefly messages he had intercepted and photocopied while working in the Naval Telecommunications Command Center at Naval Base Subic Bay, the Republic of the Philippines, to the Philippine government. The evidence corroborating the accused's confession consisted of a memorandum provided to investigators by a Philippine official containing the classified information, which the accused admitted to providing. At trial, the Philippine official did not testify, creating significant hearsay issues which the Court considered at length. After concluding the evidence was admissible at least for its tendency to show the information contained in it was in the possession of the Philippine government, the evidence was considered sufficient corroboration of the accused's confession. (185) The Court followed the holding in Yates, which applied the Supreme Court's Wong Sun decision for the proposition that the accused's identity does not need to be corroborated where, "the injury for which the accused confesses responsibility did-in-fact occur, and that some person was criminally culpable." (186)

III. CONCLUSION

In reviewing judicial treatment of the corroboration rule over the last forty years, while some precepts seem well-settled, it is clear that the lower limit described as "slight" or "very slight" evidence is not clearly or predictably defined. From the case law, however, it can be confidently stated that a confession to larceny may be corroborated by evidence that the accused had access to the stolen property and it disappeared under suspicious circumstances dovetailing in time and place with the accused's confession. It is also now abundantly clear that corroborative evidence must be admissible and admitted into evidence. Additionally, the Yates/Wong Sun formulation that a confession to a crime involving physical injury may be corroborated by evidence that the injury complained of in fact occurred seems abundantly established. Finally, a number of cases where a confession was found adequately corroborated as to a lesser offense, but not as to a greater offense where the differentiating element is not corroborated, would seem to stand for the proposition that some vestige of the "elements" analysis remains as embodied in the "essential facts" language of the rule such that while not every element requires corroboration, at least the gravamen of the offense should be. Beyond these issues, however, the following questions remain:

A. What Are Essential Facts?

Clearly the line of Air Force cases illustrated by the Baldwin decision represents a consistent theme seeking to allow corroboration of an entire confession by corroborating the essential facts of the confession itself, not of the admitted offense. This formulation is troublesome in two respects. First, it seems to contradict the clear implication of MRE 304(g), which states that only those essential facts independently corroborated should be admitted, and second, taken to its logical conclusion, Baldwin and its progeny would go against the clear intent of the Opper and Smith cases and their progeny that the corroboration requirement exist as an additional and more stringent requirement than the requirement that confessions merely be voluntary. Though several of these cases have reached the Court of Appeals for the Armed Forces, the particular issue has evaded comment by the higher court. It seems this formulation has not been adopted by any of the other service courts, representing a possible difference of interpretation among the services as to which, clarifying guidance from the Court of Appeals for the Armed Forces may prove helpful.

B. When Can a Confession to One Offence Corroborate Another?

The other issue remaining largely unexplored is the question of when an admission to a series of offenses can be corroborated by evidence of only one of those offenses. This would seem to be a question of how much confidence the corroborating evidence lends to the broader admission. In cases where the admitted course of conduct is substantially similar to the corroborated offense, the corroboration has been found sufficient, whereas in cases such as Rounds where the additional offense differs in time, place and manner, additional corroboration has been required. Perhaps the well-developed body of law surrounding MRE 404(b) would provide a meaningful touchstone for evaluating these issues. Where evidence of one offense would be admissible as proof of another, it would seem that where that evidence also establishes essential facts as to an admitted offense, corroboration should be sufficient.

C. Final Thoughts

In the final analysis, one facing a corroboration issue residing near the lower limit faces a task in many respects no less daunting than it was immediately after adoption of the Opper rule. Some of this difficulty is unavoidable in the highly fact-specific nature of the ultimate inquiry, while differences between the services and a handful of difficult-to-explain cases, not to mention the apparent conflict between terms such as "substantial," "slight," and "very slight," contribute to the confusion. If the above discussion provides at least enough facts regarding enough cases to allow practitioners to meaningfully analogize future cases and to engage in a more informed decision-making process, then it will have been a success. Should it prompt further clarification from those empowered to do so, all the better.

(1) Hamdan v. Rumsfeld, 548 U.S. 557, 597 (2006). See also Honorable Walter T. Cox III, The Army, The Courts, and The Constitution: The Evolution of Military Justice, 118 MIL. L. REV. 1, 9 (1987).

(2) WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS, 327 (2d ed. 1920).

(3) Infra note 27 and accompanying discussion.

(4) See Opper v. United States, 348 U.S. 84, 89-90 (1954).

(5) Warszower v. United States, 312 U.S. 342, 347 (1941).

(6) Smith v. United States, 348 U.S. 147, 153 (1954).

(7) Id.

(8) Opper, 348 U.S. at 84.

(9) Forte v. United States, 94 F.2d 236, 244 (D.C. Cir. 1938).

(10) Ercoli v. United States, 131 F.2d 354, 355 (D.C. Cir. 1942).

(11) See Opper, 348 U.S. at 92 (quoting Daeche v. United States, 250 F. 566 (2d Cir. 1918)).

(12) Winthrop, supra note 2, at 327.

(13) Opper, 348 U.S. at 86-88.

(14) Id. at 93-94.

(15) Id. at 93.

(16) Daeche, 250 F. at 566.

(17) Smith, 348 U.S. at 155.

(18) Id. at 154.

(19) Id.

(20) Id. at 153.

(21) Id. at 158.

(22) Id.

(23) Daeche, 250 F. at 571.

(24) Id. at 572.

(25) Id. at 571.

(26) Smith, 348 U.S. at 154.

(27) That provision provided, in pertinent part, "An accused cannot legally be convicted upon his uncorroborated confession or admission. A court may not consider the confession or admission of an accused as evidence against him unless there is in the record other evidence, either direct or circumstantial, that the offense charged had probably been committed by someone." MANUAL FOR COURTS MARTIAL, UNITED STATES, [paragraph] 140a (1951) [hereinafter MCM].

(28) United States v. Isenberg, 8 C.M.R. 149 (C.M.A. 1953).

(29) See, e.g., United States v. Villasenour, 19 C.M.R. 129 (C.M.A. 1955); United States v. Smith, 32 C.M.R. 105 (C.M.A. 1962).

(30) "Moreover, 'the quantum of evidence' needed to raise such an inference is 'slight.'" United States v. Yeoman, 25 M.J. 1, 4 (C.M.A. 1987) (quoting STEPHEN A. SALTZBURG ET AL., MILITARY RULES OF EVIDENCE MANUAL 139 (2d ed. 1986)).

(31) "Although no mathematical formula exists to measure sufficient corroboration, our review of the federal court decisions cited below leads us to conclude that the amount of corroboration generally needed is not great. Considering the language of Mil.R.Evid. 304 (g)(1), we also conclude that the amount needed in military courts may be very slight." United States v. Melvin, 26 M.J. 145, 146 (C.M.A. 1988).

(32) United States v. Rounds, 30 M.J. 76 (C.M.A. 1990).

(33) Id. at78.

(34) Id. at 79.

(35) Id. at 80.

(36) United States v. Faciane, 40 M.J. 399 (C.M.A. 1994).

(37) Id. at 400-401.

(38) Id at 403.

(39) United States v. Duvall, 44 M.J. 501 (A.F. Ct. Crim. App. 1996), rev'd, 47 M.J. 189 (C.A.A.F. 1997).

(40) MCM, supra note 27, MIL. R. EVID. 304(g).

(41) Duvall, 44 M.J. at 502.

(42) Id. at 504-55. The Court did not mention the Army decisions in Gaines and Shavers (supra Parts II.E.3.b and II.E.3.c), however, since these eases were decided, the rule was amended to remove the requirement that the military judge instruct the members on the issue of corroboration.

(43) Id. at 504.

(44) "In a further effort to understand the rule, it is worth remarking that both Smith and Warszower preceded Miranda v. Arizona, 384 U.S. 436, (1966). Miranda's sweeping prophylaxis went a long way toward alleviating the principal concern of the Smith holding, the unreliable confession." Id.

(45) United States v. Duvall, 47 M.J. 189, 192 (C.A.A.F. 1997).

(46) See id. at n.3 (citing numerous cases and articles discussing ongoing concerns with false confessions).

(47) United States v. Greenberg, 41 C.M.R. 881 (A.F.C.M.R. 1969).

(48) Id. at 883.

(49) Id. at 884.

(50) United States v. Springer, 5 M.J. 590 (A.F.C.M.R. 1978).

(51) Id. at 592.

(52) Id. at 592-93.

(53) See infra Part II.F.1 .a and accompanying discussion.

(54) United States v. Lowery, 13 M.J. 961 (A.F.C.M.R. 1982).

(55) Id. at 963-4.

(56) See discussion infra Part II.E.3.d.

(57) United States v. Holler, 43 C.M.R. 461 (A.C.M.R. 1970).

(58) Id. at 466.

(59) Id. at 467.

(60) Id.

(61) Id. at 468, n.4 (citations omitted).

(62) United States v. Gaines, 44 C.M.R. 375 (A.C.M.R. 1971).

(63) Id. at 379.

(64) United States v. Shavers, 11 M.J. 577 (A.C.M.R. 1981).

(65) A plate was described as a 10-dollar packet. Id. at 578 n.1.

(66) Id. at 579. While one could argue that the list could be admitted under some other exception to or exclusion from the hearsay rule, ultimately the relevance of the list of names, absent some independent evidence tying an individual on the list to a purchase of cocaine, derives solely from the accused's otherwise uncorroborated confession.

(67) Id. at 578 n.4.

(68) United States v. Drake, 12 M.J. 666 (A.C.M.R. 1981).

(69) Id. at 669-70.

(70) United States v. Loewen, 14 M.J. 784 (A.C.M.R. 1982).

(71) Id. at 787.

(72) Id.

(73) United States v. Egan, 53 M.J. 570 (A. Ct. Crim. App. 2000).

(74) Id. at 578.

(75) Id.

(76) Id. at 577 (quoting Smith v. United States, 348 U.S. 147 (1954).

(77) United States v. Kelly, 32 M.J. 813 (N.M.C.M.R. 1991).

(78) Id. at 822.

(79) Id. at 815.

(80) Cf. United States v. Lockhart, (A.F.C.M.R. 1981) (holding that failure to object on the basis of corroboration waived the issue on appeal).

(81) United States v. Harjak, 33 M.J. 577 (N.M.C.M.R. (1991).

(82) Id. at 580.

(83) Id. at 585.

(84) Id.

(85) Id.

(86) United States v. Seigle, 47 C.M.R. 340 (C.M.A. 1973).

(87) Id. at 342-43.

(88) United States v. White, 9 M.J. 168 (C.M.A. 1980). Though Opper was previously cited in United States v. Pringle, 3 M.J. 308 (C.M.A. 1977), the citation in that case was with regard to a joint trial/severance issue, not an issue as to the corroboration of a confession.

(89) Id. at 170.

(90) United States v. Yates, 24 M.J. 114 (C.M.A. 1987), cert. denied, 484 U.S. 852 (1987.

(91) Wong Sun v. United States, 371 U.S. 471 (1968).

(92) Yates, 24 M.J. at 116 (citing Wong Sun, 371 U.S. at 490, n.15).

(93) Id. at 116-17.

(94) Id. at 117. Interestingly, after denial of certiorari by the Supreme Court, there is no reported case law indicating how the case was resolved upon remand.

(95) See Opper v. United States, 348 U.S. 84, 92 (1954) (quoting Deache v. United States, 250 F. 566 (2d Cir. 1918)) and supra note 11 discussion.

(96) United States v. Yeoman, 25 M.J. 1 (C.M.A. 1987).

(97) Id.

(98) Id. at 4 (citing STEPHEN A. SALTZBURG ET AL., MILITARY RULES OF EVIDENCE MANUAL 139 (2d ed. 1986).

(99) United States v. Melvin, 26 M.J. 145 (C.M.A. 1988).

(100) Id. at 146 (citing Yeoman, 25 M.J. at 1).

(101) Id.

(102) Id.

(103) Id. at 147.

(104) Id.

(105) United States v. Hughes, 28 M.J. 391 (C.M.A. 1989).

(106) Id. at 396.

(107) United States v. Maio, 34 M.J. 215 (C.M.A. 1992).

(108) Id. at 215.

(109) Id. at 218.

(110) Id. at 222.

(111) Id. at 223.

(112) United States v. Cottrill, 45 M.J. 485 (C.A.A.F. 1997).

(113) Id. at 489.

(114) Id.

(115) United States v. Baldwin, 53 M.J. 676 (A.F.C.C.A. 2000).

(116) United States v. Baldwin, 54 M.J. 551 (A.F.C.C.A. 2000).

(117) United States v. Baldwin, 54 M.J. 464 (C.A.A.F. 2001).

(118) Baldwin, 54 M.J. at 552-53.

(119) Id. at 555.

(120) Id. (emphasis added).

(121) Id.

(122) Id. (quoting MCM, supra note 27, MIL. R. EWD. 304(g)).

(123) Id.

(124) Id. at 556 (citing dicta in Smith v. United States, 348 U.S. 147 (1954)).

(125) Baldwin, 54 M.J. at 465.

(126) Id. at 465-66.

(127) Id, at 465.

(128) United States v. Seay, 60 M.J. 73 (C.A.A.F. 2004).

(129) Id. at 80.

(130) United States v. Arnold, 61 M.J. 254 (C.A.A.F. 2005).

(131) Id. at 256-57.

(132) United States v. Smith, 41 C.M.R. 930 (A.F.C.M.R. 1969).

(133) Id. at 932.

(134) United States v. Olesiak, 42 C.M.R. 966 (A.F.C.M.R. 1970).

(135) Id. at 968.

(136) United States v. Richards, 47 C.M.R. 544 (A.F.C.M.R. 1973).

(137) Id. at 546.

(138) Id. at 548.

(139) Id. at 547 (citing United States v. Afflick, 40 C. M. R. 174 (C.M.A. 1969)).

(140) United States v. Baran, 19 M.J. 595 (A.F.C.M.R. 1984).

(141) Id. at 596.

(142) Id. at 599.

(143) Id.

(144) See subsequent proceedings at 22 M.J. 265 (C.M.A. 1986) and 23 M.J. 763 (A.F.C.M.R. 1986).

(145) United States v. Mitchell, 39 M.J. 854 (A.F.C.M.R. 1989).

(146) Id. at 854-55.

(147) See discussion supra Part II.F.1.e.

(148) See discussion supra Part II.F.1.c.

(149) United States v. Foley, 37 M.J. 822 (A.F.C.M.R. 1993), review denied, 39 M.J. 340 (CMA 1993).

(150) Id. at 834.

(151) Id.

(152) United States v. McCastle, 40 M.J. 763 (A.F.C.M.R. 1994).

(153) See discussion supra Part II.E.3.f.

(154) Egan, 53 M.J. at 765.

(155) See discussion supra Part II.E.3.f.

(156) United States v. McCastle, 43 M.J. 438 (C.A.A.F. 1996), cert. denied, 517 U.S. 1246 (1996).

(157) United States v. Lawrence, 43 M.J. 677 (A.F.C.C.A. 1995).

(158) Id. at 681.

(159) Id.

(160) United States v. Cucuzella, 64 M.J. 580 (A.F.C.C.A. 2007).

(161) Id. at 585. See also United States v. Baldwin, 54 M.J. 551, 555 (A.F.C.C.A. 2000) (en banc).

(162) See United States v. Cucuzella, 66 M.J. 57 (C.A.A.F. 2008).

(163) United States v. Johnson, 43 M.J. 783 (A.C.M.R. 1971).

(164) Id. at 786.

(165) Id. at 786-77.

(166) United States v. Schuring, 16 M.J. 664 (A.C.M.R. 1983).

(167) Id. at 671.

(168) United States v. Poduszczak, 20 M.J. 627 (A.C.M.R. 1985).

(169) Interestingly, the Army Court cited the Air Force's Baran decision, but apparently did not go so far as to use admissions as to certain facts to corroborate other crimes for which there was no independent evidence.

(170) United States v. O'Rourke, 57 M.J. 636 (A. Ct. Crim. App. 2002).

(171) Id. at 644.

(172) Id. at 641.

(173) United States v. Hise, 41 C.M.R. 802 (N.M.C.M.R. 1969), rev'd, 42 C.M.R. 195 (C.M.A. 1970) (reversing on other grounds).

(174) Id. at 805.

(175) Id. at 806.

(176) United States v. Smith, 348 U.S. 147, 154 (1954).

(177) See supra note 92.

(178) See supra note 81 and accompanying text.

(179) United States v. Crider, 45 C.M.R. 815 (N.M.C.M.R. 1972).

(180) Id. at 822

(181) Id.

(182) United States v. Henken, 13 M.J. 898 (N.M.C.M.R. 1982).

(183) Id. at 899.

(184) United States v. Allen, 31 M.J. 572, (N.M.C.M.R. 1990).

(185) Id. at 633.

(186) Id. at 634.

COLONEL J. WESLEY MOORE *

* Colonel J. Wesley Moore, USAF (B.A., Texas Tech University, cum laude; J.D., Baylor University; LL.M., McGill University) is a military judge assigned to the Air Force Trial Judiciary. Prior to his current assignment, Colonel Moore served as Chief, Space Law Division at the USSTRATCOM Staff Judge Advocate Office, Offutt AFB Nebraska and then as Chief, Air and Space Law Branch, Headquarters USAF in the Pentagon and most recently as the Staff Judge Advocate for the 436th Airlift Wing, Dover AFB, Delaware.
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Title Annotation:Military Rules of Evidence
Author:Moore, J. Wesley
Publication:Air Force Law Review
Date:Mar 22, 2011
Words:18135
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