Wrestling With MRE 304(G): The Struggle to Apply the Corroboration Rule

Author:Maj Russell L. Miller1


Volume 178 Winter 2003



Therefore confess thee freely of thy sin; For to deny each article with oath Cannot remove nor choke the strong conception that I do groan withal. Thou art to die.2

  1. Introduction

    Confessions are powerful. The admission of an accused's confession in a criminal trial carries heavy weight. Likewise, the suppression of such a confession may cause a prosecutor's case to fall apart. Given its importance, our jurisprudence affords the accused several privileges against self-1. Judge Advocate, U.S. Army. Presently assigned as an Advanced Operational Law Studies Officer with the Center for Law and Military Operations. LL.M, The Judge Advocate General's Legal Center & School, U.S. Army, Charlottesville, Virginia; J.D. 1995 (magna cum laude), Salmon P. Chase College of Law, Northern Kentucky University; B.A. 1988 (summa cum laude) Southwestern Oklahoma State University. Prior assignments include: Deputy Legal Advisor, Joint Task Force Six, Ft. Bliss, Texas, 2000-2002; Deputy District Attorney, 8th Judicial District, Clayton, New Mexico, 1998-2000; Brigade Judge Advocate, 505th Parachute Infantry Regiment, 82d Airborne Division, Fort Bragg, North Carolina, 1997-1998; Chief, Legal Assistance, 82d Airborne Division, Fort Bragg, North Carolina, 1997; Operational Law Attorney, 82d Airborne Division, Fort Bragg, North Carolina, 1996; Legal Assistance Attorney, 82d Airborne Division, Fort Bragg, North Carolina, 1996; 138th Judge Advocate Officer Basic Course, The Judge Advocate General's School, 1995; Assistant Intelligence Officer, 1st Brigade, 3d Infantry Division, Schweinfurt, Germany, 1991-1992; Assistant Personnel Officer, 1st Brigade, 3d Infantry Division, Schweinfurt, Germany, 1991; Mortar Platoon Leader, 5th Battalion, 15th Infantry Regiment, 1st Brigade, 3d Infantry Division, Schweinfurt, Germany, 1989-1990; Rifle Platoon Leader, 5th Battalion, 15th Infantry Regiment, 1st Brigade, 3d Infantry Division, Schweinfurt, Germany, 1989; Bradley Commander's Course, Infantry Mortar Platoon Officer Course and Infantry Officer Basic Course, Fort Benning, Georgia, 1988-1989. Before his commissioning in 1988, Major Miller served as an enlisted infantry soldier and drill sergeant. This article was submitted in partial completion of the Master of Laws requirements of the 51st Judge Advocate Officer Graduate Course.



    incrimination. One of these important privileges is the notion that a confession or admission of a defendant or accused cannot subsequently be used against them as evidence of guilt in a criminal trial unless there is independent evidence which sufficiently corroborates the confession. This rule is commonly referred to as the corroboration rule. Its common law roots trace back to the courts of England in the mid seventeenth century.3 The rule was adopted throughout courts in the United States at the state and federal levels.4 In military practice, the corroboration rule is codified at Military Rule of Evidence (MRE) 304(g).5 Although it seems fairly simple and straightforward, military courts-martial have, at times, struggled to apply it consistently. Simple mechanical implementation of the rule can be challenging. This article urges a fair and faithful application of this important rule and privilege by identifying recent inconsistent treatments, exploring its rational and historical underpinnings, and making a recommendation to clarify its requirements.

    Specifically, this article proposes amendments to MRE 304(g).6 These proposed amendments require some degree of admissible evidence against the accused in determining whether the accused's confession or admission has been sufficiently corroborated. The purpose of the proposed amendments is to focus the analysis of the rule's application on the quality of the corroborative evidence with the aim of preventing the erosion of an accused's rights and privileges.

  2. Background

    1. The Distrust of Confessions

      A criminal defendant in our system of justice receives the benefit of several forms of privilege against self-incrimination. The privileges against self-incrimination derive, in part, from distrust in American criminal jurisprudence of the confession.7 A reflection of this mistrust is found in a quote by Justice Goldberg: "a system of criminal law enforce-


      2. See Opper v. United States, 348 U.S. 84, 93 (1954) (adopting corroboration rule for federal courts); see generally 3 G. JOSEPH & S. SALTZBURG, EVIDENCE IN AMERICA: THE


      3. MANUAL FOR COURTS-MARTIAL, UNITED STATES, MIL. R. EVID. 304(g) (2002) [hereinafter MCM].

      4. Id.

        ment which comes to depend on the 'confession' will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation."8 There are two components to this mistrust.

        The first component is a concern for a potential abuse of authority that may arise during interrogation of a suspect, which may be of an oppressive nature.9 To address police misconduct during interrogations, the privilege against self-incrimination has several aspects. These include suppression of coerced confessions10 and the requirement to advise suspects of their Fifth and Sixth amendment constitutional rights before custodial interrogation.11 These aspects of the privilege against self incrimination "purport to regulate interrogation in a way that reduces the incidence of false con-7. Corey J. Ayling, Comment, Corroborating Confessions: An Empirical Analysis of Legal Safeguards Against False Confessions, 1984 WIS. L. REV. 1121, 1122 (1984).

      5. Escobedo v. Illinois, 378 U.S. 478, 488-89 (1964) (Goldberg, J., concurring).

      6. Ayling, supra note 7, at 1123.

      7. Payne v. Arkansas, 356 U.S. 560 (1958). In Payne, a mentally dull nineteen-year-old African American with a fifth-grade education, was convicted in a state court of first degree murder and sentenced to death.

        At his trial, there was admitted in evidence, over his objection, a confession shown by undisputed evidence to have been obtained in the following circumstances: He was arrested without a warrant and never taken before a magistrate or advised of his right to remain silent or to have counsel, as required by state law. After being held for three days without counsel, advisor or friend, and with very little food, he confessed after being told by the Chief of Police that "there would be 30 or 40 people there in a few minutes that wanted to get him" and that, if he would tell the truth, the Chief of Police probably would keep them from coming in.

        Id. The Supreme Court reversed the conviction finding from the totality of the circumstances that the confession was coerced and did not constitute an expression of free choice. Id. at 568. Even though there may have been sufficient evidence to support his conviction apart from the coerced confession, the judgment was voided because it violated the Due Process Clause of the Fourteenth Amendment. Id.

      8. Miranda v. Arizona, 384 U.S. 436 (1966). The Court held:

        Prosecution may not use statements from custodial interrogation of a defendant unless it shows procedural safeguards secured the privilege against self-incrimination. Defendant must be warned that he has the right to remain

        silent and anything he says may be used against him. He must be clearly informed he has the right to consult with a lawyer and to have the lawyer

        with him during interrogation.


        fessions, reliability concerns are collateral to the main purpose of each: to suppress all confessions, whether reliable or not, that result from the abuse of power."12

        The second component of the mistrust of confessions is the concern regarding the reliability of the confession. "The primary doctrinal remedy for the problem of physically uncoerced false confessions, on the other hand, has been the corroboration rule."13 There are several species of the corroboration rule in American jurisprudence, and all require evidence in addition to the confession as a test of reliability.14 Military Rule of Evidence 304(g) sets forth the means for corroborating a confession or admission of an accused in courts-martial.15 An examination of the historical development of the corroboration rule will facilitate a more complete analysis of MRE 304(g).

    2. Historical Underpinnings of the Corroboration Rule

      1. The Corpus Delecti Rule

        a. Origins of the Corpus Delecti Rule

        The corroboration rule traces its historical underpinnings back to the development of the corpus delecti rule, which is still followed in most states today.16 Legal historians identify the origins of the corpus delecti rule in a 1661 English murder prosecution entitled Perry's Case.17 Perry's Case was a murder trial in which the victim's body was never found. The "victim" was waylaid, kidnapped, and held as a slave in Turkey. The defendant, his servant, was implicated by his failure to return home after being sent to find his brother and mother. The three were convicted and executed on the basis of the victim's disappearance, a bloodied hat, and a confession by one of the co-defendants.18 The victim later showed up

      2. Ayling, supra note 7, at 1124.

      3. Id.

      4. Other forms of the corroboration rule will be discussed infra as we examine its origin and development. For a more comprehensive listing of jurisdictions and the form of the corroboration rule they follow, see generally E. H. Schopler, Annotation, Corroboration of Extrajudicial Confession or Admission, 45 A.L.R. 2d 1316 (1956).

      5. MCM, supra note 5, MIL. R. EVID. 304(g).

      6. Bruce A. Decker, People v. McMahan: Corpus Delecti Rule or Trustworthiness Doctrine...

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