Burying the Body—dismantling the Corpus Delicti Rule and Adopting the Trustworthiness Standard
| Publication year | 2013 |
| Pages | 59 |
Articles Criminal Law
By Samuel A. Evig
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, Judge for the Second Judicial District Court, Denver
A recent decision by the Colorado Supreme Court abrogated the doctrine of corpus delicti and installed the trustworthiness standard in its place. This article explores the decision and what it means for Colorado practitioners.
In People v. LaRosa, announced in January 2013, the Colorado Supreme Court overturned Colorado’s corpus delicti rule.[1] That rule, generally speaking, requires evidence of guilt beyond a defendant’s confession. In jettisoning the corpus delicti rule, the Colorado Supreme Court negated more than 100 years of its own precedent.[2] The decision, in a sort of circle-of-life for legal rules, signals both the death of one doctrine and the beginning of a new one by setting forth a new standard of evidentiary sufficiency for one by setting forth a new standard of evidentiary sufficiency for cases where a confession is the major (if not only) piece of truly incriminating evidence. The new test, labeled by the Court as the "trustworthiness standard, "[3] comes from federal cases, and the opinion provides some limited guidance in its application for practitioners.[4] This article examines the opinion with an eye toward helping attorneys recognize situations in which the trustworthiness standard applies, and looks at how other courts have handled issues soon to confront Colorado practitioners.
The Facts of LaRosa
LaRosa confessed to his wife, mother, pastor, a police dispatcher, and a detective that days before he had molested his daughter in a private area of a recreation center by performing oral sex on her while he masturbated.[5] At the time of the offense, his daughter was only 2-and-a-half years old and therefore unable to recall the incident. Besides multiple confessions, the prosecution presented evidence that LaRosa appeared lucid and not mentally ill during his confessions; introduced visitor logs proving he had, indeed, visited the recreation center on the date in question; and provided photographs of the shower area where he said the offense occurred.[6] Both before and during the trial, the defense argued the corpus delicti rule operated to preclude his conviction.[7]The trial court rejected those arguments.
Although LaRosa took the stand in his own defense and explained why he confessed to something that did not happen, the jury nevertheless convicted him of all charges.[8] In an unpublished opinion, the Colorado Court of Appeals reversed the convictions based on the corpus delicti rule.[9] The prosecution petitioned for certiorari, requesting that the Colorado Supreme Court join a growing number of jurisdictions abandoning the corpus delicti rule, and the Court agreed to hear the case.
In a 5–2 decision written by Chief Justice Bender, in which Justices Eid and Coats dissented, the Court discarded the corpus delicti rule, and announced a new standard applicable to situations like LaRosa’s—where a confession is the principal piece of incriminating evidence. It also concluded that due process prevented applying the new standard to LaRosa’s case, and thus affirmed the reversal of his convictions.[10]
The Corpus Delicti Rule
The corpus delicti rule is the sort of classic legal rule lawyers love. It is Latin, and thus sounds impressive. It means literally (if still mysteriously) the "body of the crime."[11] The rule requires the prosecution to prove the crime described in a confession actually happened—using evidence other than the confession itself.[12] The LaRosa majority found "little consensus" concerning the reasoning behind the rule, [13] but other sources indicate the original purpose of the rule was to prevent the conviction of people who confessed to nonexistent crimes.[14] Scholars cite cases involving the disappearance of a victim, the identification of a suspect, the suspect confessing, the subsequent conviction and execution (or near execution) of the suspect, and then the victim being found a live.[15] The driving force behind the rule is the recognition that false confessions sometimes happen, and it contains an implicit policy decision that the danger of a wrongful conviction outweighs the danger of a wrongful acquittal.
As surprising as it may seem, situations triggering the rule—a confession in the absence of any other incriminating evidence, either before or after it—do not appear to be all that unusual. In Colorado alone there are at least eight reported cases where the rule operated to overturn or preclude a confession-dependent conviction.[16] That number is misleadingly low because prosecutors who are aware of the rule likely decline a number of cases that would have triggered the rule. Indeed, the ubiquity of the standalone-confession is what apparently gave rise to the corpus delicti rule.
As noted by the LaRosa majority, the goal of the rule is to "reduce the possibility that a person is convicted based on a confession to a crime that never happened."[17] Criticism of the rule focuses on three issues. The first criticism is that it prevents the conviction of a suspect confessing to an imaginary crime but does not preclude the conviction of a suspect falsely confessing to an actual crime.[18] If a crime demonstrably happened, a mentally ill person falsely confessing to it could still be convicted. The court referred to this as an "incongruity, " and stated it came from the rule’s "inherently flawed design."[19]
The second criticism the LaRosa Court noted is that changes in the law, such as the U.S. Supreme Court’s decision in Miranda v. Arizona[20] and the proliferation of statutory crimes, have helped curtail the problem of coerced confessions and made the application of the rule in certain situations very difficult.[21] The Court noted Miranda lessened the danger of "overzealous" police interrogations and that showing a tangible injury for inchoate crimes is sometimes impossible.[22] Further, courts have noted that statutory crimes have become so numerous and well-defined that determining what constitutes the corpus delicti of some offenses is nearly impossible.[23]
Finally, critics have noted the rule carries the very real risk of obstructing justice by preventing the conviction of offenders who commit crimes with no evidence of tangible injury.[24] An easier way to consider this criticism is to think of the rule as being over-inclusive because it ma y result in wrongful acquittals—that is, it sometimes operates to free those who commit and then confess to an actual as opposed to imaginary crime, but one with no tangible remains of provable harm. These types of crimes tend to be those in which victims are either absent or are unable to articulate what happened to them. For example, the Court identified cases in which the rule resulted in dismissals against defendants who admitted to molesting very young children.[25]
The LaRosa Court found each of these criticisms valid, and concluded that more good than harm would come from departing from precedent.[26] It abrogated the corpus delicti rule and, like many other state and federal courts, replaced it with a more forgiving inquiry grounded in analyzing the trustworthiness of the forgiving inquiry grounded in analyzing the trustworthiness of the confession.
Formation of the Trustworthiness Standard
The LaRosa Court adopted the reasoning of a trio of U.S. Supreme Court cases announced in 1954. The cases, Opper v. U.S., U.S. v. Calderon, and Smith v. U.S., all dealt with financial crimes where the most damning evidence came from confessions.[27] Of the three, Opper provides the clearest formulation of the standard.
The government accused Opper of conspiring with and bribing a government employee named Hollifield.[28] At trial, the government presented evidence Opper and Hollifield had met and that, soon after the meeting, Hollifield made a decision favorable to Opper. The rest of the proof presented at trial consisted of statements Opper made to federal authorities about a number of "loans" to Hollifield soon after the favorable decision.[29]
After his conviction, Opper appealed and eventually the Supreme Court reviewed the case. One of Opper’s arguments concerned the sufficiency of the evidence—whether the statements he made were sufficient to support a conviction.[30] Opper’s "confession, " after all, was an admission to providing loans—not that the loans were bribes. The Court formulated a rule requiring the prosecution to "introduce substantial independent evidence which would tend to establish the trustworthiness of the statement."[31] This, then, was the first formulation of the trustworthiness standard.
The Opper Court went on to conclude that the additional information presented by the government (the timing of Hollifield’s decision and evidence showing the two had met) provided enough corroboration to make the defendant’s statements trustworthy.[32] The statements, when added to the other evidence, were enough to permit a fact finder to find beyond a reasonable doubt that Hollifield committed the charged offense. The Court specifically noted the need for a flexible rule by saying "[e]ach case has its own facts admitted and its own corroborative evidence, which leads to patent individualization of the opinions."[33]
Versions of this new trustworthiness standard have been adopted by a host of federal and state courts.[34] But a...
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