Court-Martial Trial Practice Blog
An item sometimes missed or perhaps not always explored in cases with a confession is the question of corroboration. Here is an Army case that discusses the issue quite well. The case recognizes that the amount of corroboration is small so it’s easy to gloss over the corroboration issue. Here is the value of the admonition to check the elements, do whatever “proof” chart you use, and take a moment to consider if the government can meet their burden to get past a motion. Also remember, that so long as made in good faith, such a motion becomes a discovery tool. A motion for a Bill of Particulars is not to be used purely for discovery, however, such a motion – again so long as made in good faith — in part gives some discovery. Anyway, back to Rosas.
United States v. Rosas, No. ARMY 20060075 (A. Ct. Crim. App. 14 July 2009).
Appellant was the leader of a conspiracy involving four other United States Soldiers, several U.S. citizens, and one or more Colombian co-conspirators. His offenses occurred over the course of a two-year period during which appellant was a mission supervisor on electronic surveillance flights over Colombia.
During the course of the conspiracy, appellant and multiple co-actors smuggled a total of eighty-one kilograms (kilos) of cocaine aboard various U.S. military aircraft flying from Apiay Air Force Base, a Colombian Air Force installation, to Biggs Army Airfield on the Fort Bliss, Texas, military installation. Other than a wire transfer of $15,000 from a United States bank to his Colombian drug source, appellant paid for the cocaine with a total of $209,000 in cash transported aboard military flights from Fort Bliss to Colombia. He traded and received firearms in partial payment for cocaine.
Appellant asserts, inter alia, the military judge improperly admitted uncorroborated confessions pertaining to Specifications 14 and 15 of Charge II, Specification 6 of Charge III, and Specifications 1 and 2 of the Additional Charge. These specifications concern cocaine distribution, money laundering, and use of firearms in furtherance of a drug trafficking crime, respectively. Appellant further alleges the evidence is legally and factually insufficient to support his conviction for the wrongful use, carrying and/or possession of a firearm in furtherance of a drug trafficking crime [Specification 2 of the Additional Charge]. These assignments of error merit discussion but not relief.
Military Rule of Evidence [hereinafter Mil. R. Evid.] 304(g) sets out the corroboration requirements to admit a statement made by the accused:
An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence . . . has been introduced that corroborates the essential facts admitted to justify sufficiently an inference of their truth.
The case law interpreting Mil. R. Evid. 304(g) is clear: essential facts of the confession must be sufficiently corroborated by independent evidence. See United States v. Arnold, 61 M.J. 254, 256-57 (C.A.A.F. 2005); United States v. O’Rourke, 57 M.J. 636, 641 (Army Ct. Crim. App. 2002). Independent evidence is evidence not based on or derived from the accused’s extrajudicial statements. Arnold, 61 M.J. at
257 (citing Opper v. United States, 348 U.S. 84, 93 (1954)). This principle of corroboration is intended to safeguard against false or coerced confessions. However, corroborating evidence need not confirm each element of an offense, but must “corroborate[] the essential facts admitted to justify sufficiently an inference of their truth.” Mil. R. Evid. 304(g); see also United States v. Rounds, 30 M.J. 76, 80 (C.M.A. 1988). This inference may be drawn from a quantum of evidence our superior court has described as “very slight.” United States v. Melvin, 26 M.J. 145, 146 (C.M.A. 1988).[1]
[1] Mil. R. Evid. 304(g)(1) states:
Quantum of evidence needed. The independent evidence necessary to establish corroboration need not be sufficient of itself to establish beyond a reasonable doubt the truth of facts stated in the admission or confession. The independent evidence need raise only an inference of the truth of the essential facts admitted. The amount and type of evidence introduced as corroboration is a factor to be considered by the trier of fact in determining the weight, if any, to be given to the admission or confession.