(dissenting):
May a jury convict an accused based solely on the accused’s out of court confession to the police? The majority says yes — I say no.
FACTS
Appellant confessed to criminal investigators that he used marijuana once with a Senior Airman McKague, and swore to and signed a typed statement the investigators prepared to that effect. At trial, he moved to suppress the confession alleging it was involuntary due to police coercion and uncorroborated by independent evidence.
The military judge determined appellant’s statement was voluntary and adequately corroborated. The judge found corroboration in the testimony of a former airman, Alan Brents, who testified in an evidentiary hearing that McKague once admitted smoking marijuana with appellant under the circumstances appellant described in his confession. However, the judge ruled Brents’ testimony was not admissible before the court members deciding appellant’s fate. Following that ruling, the prosecutor only presented one piece of evidence to prove the marijuana offense: appellant’s written confession.
As expected, defense counsel moved for a finding of not guilty on the use offense at the close of the prosecution’s case, arguing there was no evidence before the members to corroborate the confession. See R.C.M. 917. However, the judge replied, “Corroboration is an issue for the judge.” Undaunted, defense counsel argued that corroboration was an issue like voluntariness which could be argued to the members and left for their ultimate factual determination despite a judge’s preliminary ruling of admissibility. Unpersuaded, the military judge not only denied the motion but precluded defense counsel from arguing the issue to the members. (The military judge also refused to instruct on the voluntariness issue, but appellant has not asserted that as error here.)
DISCUSSION
“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, either direct or circumstantial, has been introduced that corroborates the essential facts admitted to justify sufficiently an inference of their truth.” Mil.R.Evid. 304(g). “The military judge alone shall determine when adequate evidence of corroboration has been received.” MilR.Evid. 304(g)(2). “Preliminary questions concerning the ... admissibility of evidence ... shall be determined by the military judge [who] is not bound by the rules of evidence except those with respect to privileges.” Mil.R.Evid. 104(a).
In theory, the majority’s ruling appears to be a technically correct analysis of these rules of evidence. However, the end result of their mathematical application of the rules leaves their constitutional gyroscope off kilter.
I agree that the military judge determines “[preliminary questions of’ admissibility. Mil.R.Evid. 104(a). However, the key word here is “preliminary.” Under our system, the trier of fact has the ultimate say on whether a confession is sufficiently voluntary or corroborated to be relied upon for a conviction. In a members trial, the military should instruct on voluntariness and corroboration issues on an accused’s request. United States v. Everett, 41 M.J. 847, 853-54 (A.F.C.M.R.1994) (voluntariness); United States v. Seigle, 22 U.S.C.M.A. 403, 47 C.M.R. 340, 1973 WL 14727 (1973) (corroboration); 7 Wigmore, Evidence, § 2073, at 530-31 (Chadbourn Rev.1978) (corroboration).
Consequently, I conclude the trier of fact may use a confession as evidence to support a conviction only when the evidence used for corroboration is otherwise admissible in evidence before it. See United States v. Faciane, 40 M.J. 399 (C.M.A.1994) (reversing conviction where appellant’s confession corroborated by hearsay evidence Court finds was improperly admitted). As the Supreme Court accurately summarized in Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954), one of its first corroboration rule cases:
Thus the independent evidence serves a dual function. It tends to make the admission reliable, thus corroborating it, while *507also establishing independently the other necessary elements of the offense. 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.
Id. at 93, 75 S.Ct. at 164-65 (citations omitted).
The majority gives no meaning to words of those great justices who created the corroboration rule. I would reverse the conviction and dismiss the charge and specification based on a failure of proof. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).