CORROBORATION—that which Tends to Strengthen or Confirm.

T

HE EXACT DEGREE of corroboration necessary to support an admission or confession into evidence often appears quite nebulous. As a rule, in the civilian sphere of the law, a confession, unsupported or uncorroborated by circumstances indicating the truthfulness thereof, will not suffice to support a conviction of an accused for the offense charged.1 The quantum of corroboration of an extrajudicial confession usually required is that there must exist independent proof of the corpus delictiproof that a certain offense has been committed and that someone is criminally responsible therefor.

The early cases handed down by the Court of Military Appeals were somewhat conflicting, covering a wide range from a strict rule of corroboration to practically no requirement therefor at all. Because corroboration is often not well understood by those practicing military law-particularly in special courts-martialthe development of the law will be traced through the cases coming down from the Court of Military Appeals, concluding with, we hope, a clearer picture of not only the Court's treat

*Mr. Zeigel W. Neff has been a civilian member of Board of Review Number One in the Office of the Judge Advocate General since 1957. Among his earlier positions were those of Assistant Attorney General of Missouri; Special Assistant to the Judge Advocate General of the Navy for Military Justice; and Commissioner on the U.S. Court of Military Appeals. Mr. Neff holds the degrees B.A. from Southwest Missouri State College, the LL.B. from the University of Missouri, and the LL.M. from Georgetown University. He is a Commander in the U.S. Naval Reserve, having served in World War II as a naval aviator with carrier based fighter squadrons, and during the Korean hostilities as a Navy Law Specialist. Among his combat awards is the Navy Cross. a member of the bar of the State of Missouri and numerous Federal bars. Mr. Neff is a frequent contributor to legal periodicals on the subject of military justice.

He is

1. 20 Am. Jr. 1242. But some jurisdictions have provided that free and voluntarily made confessions are alone sufficient to sustain a conviction (Com. v. Killion, 194 Mass. 153, 80 N.E. 222; State v. Cerciello, 86 N.J.L. 309); or that a confession is sufficient to identify accused as the criminal agent in a prosecution (Harken v. St., 90 Tex. Crim, Rep. 212, 234 S.W. 221. In England, it also appears that a person may be convicted of an offense-other than a capital offense-upon his own extra judicial confession (10 Am. Cas. 916).

ment of this phase of the law, but also the effect of rulings in the Federal courts in developing this field of military law.

The Manual for Courts-Martial provides that an accused cannot be legally convicted upon his uncorroborated confession or admission. The record must contain evidence aliunde the confession that the offense charged has probably been committed by someone. But, generally speaking, it is not necessary that the evidence show the identity of the accused as the perpetrator of the offense. In United States v. Mims, 8 USCMA 316, 24 CMR 126, however, the Court of Military Appeals carved out an exception to this general rule. In that case, accused was charged with the wrongful use and possession of heroin. In finding the evidence sufficient to corroborate accused's confession, the Board of Review reasoned that the discovery of contraband equipment in the hospital ward established the probability that someone in the ward was using a habit-forming drug, and this evidence was sufficient corroboration. In speaking of the general rule that corroboration need not go to the identity of accused, the Court stated that in cases involving use of drugs:

. . that sort of reasoning is not sound for, if carried to its logical conclusion in this instance, every person in the hospital-or for that matter, on the post-would be an inferential user.

While the rule states that there must be evidence in the record that the offense charged has probably been committed by someone, when the specification alleges use of narcotics that someone must, of necessity, be the accused . . . We must, therefore, scan the record to determine if there is other evidence which more closely connects the accused with the use of heroin. . .

In view of the foregoing, in the case of use and possession of narcotics, it appears that the rule of corroboration has been expanded to require that the evidence must extend to the identity of the accused.

Excluding possession cases, however, the Court continues to follow the general rule that although independent evidence must go to each element of the offense, it need not identify the culprit. It need only show that the offense has probably been committed by someone. United States v. Fioco, 10 USCMA 198, 27 CMR 274. This conclusion is borne out by United States v. Rhodes, 11 USCMA 735 29 CMR 551. In that case counsel for accused attempted to spell out another exception to the general rule. There accused was convicted of conspiring to violate Federal statutes relating to transmission of information about the United States national defense to a foreign government. It did not take the Court long to dispose of appellant's reasoning that the Mims case supported their position:

. . . That case is wholly inapposite. We there held that evidence of possession of narcotic instruments by one person does not provide the required independent evidence of use of narcotics by another to support the pretrial admission of use by the latter. A number of Federal cases clearly indicate the general rule, that independent proof of the identity of the perpetrator is not required, applies to a conspiracy prosecution. United States v. Diorio, 150 F. 2d 938 (CA 3d Cir) (1945); Ryan v. United States 99 F. 2d 864 (CA 8th Cir) (1938).... We are not persuaded that it is necesary . . to carve out a special rule, requiring independent evidence of a conspirator ..

...

Nor is there any restriction on the use of circumstantial evidence for corroboration. The overwhelming majority of jurisdictions in this country hold that corroborative evidence may be either direct or circumstantial. (See Wharton's Criminal Evidence, 12th Edition, Sec. 394, citing some twenty-two different state jurisdictions to that effect.) Military law follows the general rule. As the Court stated in United States v. Manausa, 12 USCMA 37, 30 CMR 37, "And we have long since indicated evidence supporting that conclusion may be either direct or circumstantial." United States v. Petty, 3 USCMA 87, 11 CMR 87.2

2. Another interesting question presents itself with respect to whether there exists any requirement that the law officer [President] instruct sua sponte as to the adequacy of corroboration, if the issue has been raised. The answer would appear to be negative. Admissibility of a confession requires corroboration as a matter of law. If the confession is not corroborated, then legally it is inadmissible and accused cannot be convicted thereon. This would seem to be a matter for the law officer, not the members of the court, hence an instruction to the court regarding corroboration would not appear to be required-certainly not sua sponte. For example, there would appear to be more persuasive reasons why the law officer should instruct, sua sponte, concerning the uncorroborated testimony of a purported accomplice (MCM-51, par. 153a), yet in United States v. Bey, 4 USCMA 665, 16 CMR 239, the extent of the holding was that "in an appropriate case,

Going back, the first military case dealing with the problem of the sufficiency of the evidence to corroborate a confession was United States v. Brooks, 1 USCMA 88, 1 CMR 88. There an accused officer after being briefed on joining his infantry company and designated to lead a platoon attack on the enemy, left his command post before the attack and proceeded down the road away from the attack area. He was not present during the attack and was next seen 7 hours later, 50 miles distant. Accused was convicted of desertion with intent to avoid hazardous duty and sentenced to a dismissal,

the law officer must, when requested, instruct on accomplice testimony." [Emphasis supplied.] The Court summed up its holding thus:

"... We hold simply that it is error for a law officer to refuse, in a proper case, a request for an instruction on accomplice testimony, which reasonably puts him on notice that the issue in essential to a proper finding."

In U.S. v. Allums, 5 USCMA 435, 18 CMR 18, however the Court even backed off from this position:

"Moreover, we are unsure that reference in the Manual's paragraph 153a to the "uncorroborated testimony of a purported sccomplice" was directed to the members of the court-martial—er is to be applied by them. It has been suggested, indeed, that matters in the nature of the corroboration of an accomplice's testimony involve problems of legal sufficiency solely, and that legal sufficiency was meant by the Code ... to be handled by the law officer at the trial. . . . In support of this position, it must be recognized that corroboration is a technical concept-one which, like admissibility, is difficult of application by court-martial, and usually beyond the expertise of its members.

To introduce problems of corroboration into a court's deliberstions on guilt or innocence-it has been further urged-serves only to confuse the triers of fact. Cf. Holland v. U.S. 348 US 121, 75 S Ct 127. . . . Under this point of view a law officer would at no time be required to instruct that a conviction cannot be founded on the uncorroborated or vague testimony of a purported accomplice. If he discoveres a want of corroboration, he would simply instruct the court that, as a matter of law, its members may not convict. However, if he found that corroboration was present, the case would go to the court for findings... Cf. U.S. v. Massey, 5 USCMA 514, 18 CMR 138."

It can also be forcibly argued that a rule requiring sua sponte instructions as to corroboration of a confession would not be any more compelling or necessary than-say-sua sponte instructions in a sex case to the effect that accused cannot be convicted upon the uncorroborated testimony of a witness if the court finds the latter's testimony self-contradictory, uncertain or improbable. In U.S. v. Polak, 10 USCMA 13, 27 CMR 87, the Court stated:

"The defense contends that, because this is a sexual case, the law officer should have charged the members of the court on the theory that the accused could not be convicted upon the uncorroborated testimony of a witness if they found his testimony was self-contradictory, uncertain, or improbable. For the purpose of this issue, we will assume the record establishes the propriety of such an instruction had the accused made a request therefor. However, the point is raised first time on appeal and, therefore, we must determine the duty of the law officer to instruct swa sponte."

The Court concluded that there was no such duty on the law officer; that if clarification or elaboration is desired, the burden of requesting such additional instruction rests with the defense counsel, citing U.S. v. Miller, 8 USCMA 33, 23 CMR 257. Still another problem is raised with regard to whether a confession may be corroborated by other evidence which, under the fiction created in U.S. v. Minnifield, 9 USCMA 373, 26 CMR 153, is considered a statement within the purview of Article 31. For instance, could a confession to use of narcotics be corroborated by evidence of the results of a urinalysis when the urine was obtained after a full and complete warning under Article 31?

total forfeitures, and confinement at hard labor for 15 years. The Court held the above facts sufficient to establish the corpus delicti of the offense charged. In so holding, the Court cited Forte v. United States, 94 F. 2d 236, in sweeping language that "it is the universal rule that an accused cannot be legally convicted upon his uncorroborated extra-judicial confession-there must be substantial evidence of the corpus delicti other than the confession." [Emphasis supplied] However, a little later on we find the Court ostensibly changing the requirement from "substantial evidence" to "some evidence," which turned out to be mainly a difference in semantics. In United States v. Goodman, 1 USCMA 170, 2 CMR 76, the Court decided:

It is well settled that a conviction for homicide cannot be supported solely by the extra-judicial confession of the accused. There must be some evidence, independent of the confession, tending to prove the corpus delicti before the confession can properly be received in evidence.

But the Court added that phrases like "tending to prove," "same evidence," "evidence of circumstances," etc., were "simply variations of the substantial evidence rule as set forth in Forte v. United States, supra.”

The first divergence in the thinking of the Members of the Court could be discerned in United States v. Isenberg, 2 USCMA 349, 8 CMR 149. In that case, accused was convicted of desertion on his confession, an extract copy of a morning report showing an unauthorized absence of 10 days, and testimony of his company commander that the absence was unau

Insofar as Article 31(b) is concerned, both Judge Quinn and J. Ferguson seemingly include body fluids within the term "statement" contained therein and, accordingly, little doubt exists but what the accused must be warned before being asked to furnish same. This reasoning is apparently bottomed on the premise that blood and urine specimens involve self-incrimination and, due to the vulnerability of military personnel to orders, Article 31 requires this liberal interpretation of its warning requirements. See U.S. v. Musgrire, 9 USCMA 67, 25 CMR 329; U.S. v. Forslund, 10 USCMA 8, 27 CMR 82; U.S. v. Hill, 12 USMCA 9, 30 CMR 9. But, as has been pointed out by eminent scholars in military law, this extension of Article 31 carries it beyond the requirement of the Fifth Amendment to the Constitution that the prohibition against compelling an accused to be a witness against himself is a prohibition against the use of physical or moral compulsion to extract communications from him, not an exclusion against the use of an accused's body as evidence when material. U.S., 218 US 245. Everett, The Fast-Changing Law of Military Evidence, Military Law Review, April 1961.

Holt v.

It is one thing to say, however, that a urinalysis is considered a statement within the protections of Article 31, and quite another to equate it to an admission lacking corroborative power within the meaning of paragraph 140a, of the Manual. An urinalysis is physical evidence and assuming Article 31's protection against self-incrimination has been complied with, there seems to be little doubt but what it would not only corroborate a confession but, in addition, depending upon the circumstances, might well support a finding of guilty also-something an admission could not do. U.S. v. Ford, 4 USCMA 611, 16 CMR 185.

thorized. Judge Latimer spoke for the majority of the court. He pointed out that a short unauthorized absence standing alone does not show that the offense of desertion has probably been committeed, within the meaning of paragraph 140a of the Manual, for just the absence lacks facts or circumstance from which an intent to remain away permanently may be inferred. The Federal cases were reviewed and an attempt was made to draw the line as to how far corroboration must go. It was observed that the holdings vary "from a requirement that the evidence may be of any sort whatever which might prove the truthfulness of the confession, to the requirement that some evidence of each element of the offense charged be shown." Judge Latimer concluded that a study of the Federal cases and provisions of the Manual . . . shows an apparent transition from the former to the requirement that some evidence must be introduced touching on each element of the offense charged. (Citing United States v. Daeche, 250 F. 566; Forte v. United States, 94 F. 2d 236; Ercoli v. United States, 131 F. 2d 354.) He noted that in all the earlier military Manuals, prior to the latest one (1951), it was specifically provided that corroborating testimony need not cover every element of the offense charged. However, the 1951 Manual omitted any such reference to an element test. It was concluded, therefore, that the Court was not called upon to specifically resolve the conflict in the Isenberg case, because measuring the corroborative evidence by the Manual test (that there must be evidence of record-aliunde the confession-showing that offense charged has probably been committed by someone) the corroboration fell short. Chief Judge Quinn concurred.

In summary then, Judge Latimer, speaking at least for a majority of the Court discovered a tendency in the Federal courts towards a requirement that corroboration must consist of evidence going to each of the elements of the offense charged, and in the Manual, whichapparently-also tended in that direction since the 1951 version specifically omitted the clause that had been contained in the former Manuals that such stringent evidence was not required.

Judge Brosman regretfully concurred in the result, because he felt that the 1951 Manual requires that a confession or admission be corroborated by some evidence that the offense charged has probably been committed and he added "that is, at least some evidence bearing on each element of the crime alleged." How