United States v. Duvall

SULLIVAN, Judge

(dissenting):

Today the majority disregards appellant’s voluntary and corroborated confession and reverses his conviction. I must, therefore, respectfully dissent.

It is interesting to note that appellant does not proclaim his innocence or claim that his confession was coerced or involuntary. The majority does not hold otherwise.

Instead, the majority finds fault in trial counsel’s failure to make an interlocutory appeal with respect to the military judge’s ruling not to admit Senior Airman (SrA) McKague’s corroborating statement as evidence before the members. See 47 MJ 190 n. 2. I note that the military judge’s balancing act under Mil.R.Evid. 403, Manual for Courts-Martial, United States, 1984, excluded the statement from reaching the members in order to benefit appellant, not to prejudice him. Cf. United States v. Shields, 20 MJ 174, 177 (CMA 1985) (Everett, C.J., concurring in the result) (observing that the accused benefited from admission of otherwise inadmissible evidence because of the military judge’s previous erroneous ruling).

Furthermore, the majority believes that the letter and purpose of the corroboration rule require the independent corroborative evidence to be introduced to the members in order to be considered. I believe the majority’s approach is wrong, and its reasoning is unpersuasive in light of the facts of this case.

Under the Military Rules of Evidence, preliminary questions concerning admissibility of evidence are determined by the military judge. “In making these determinations the military judge is not bound by the rules of evidence____” Mil.R.Evid. 104(a). In regard to corroboration of a confession, “[t]he military judge alone shall determine when adequate evidence of corroboration has been received.” Mil.R.Evid. 304(g)(2). In addition, the corroborative evidence “need raise only an inference of the truth of the essential facts admitted.” MiLR.Evid. 304(g)(1).

The military judge determined, in accordance with the above rules, that SrA McKa-gue’s hearsay statement corroborating appellant’s confession was a declaration against interest. See Mil.R.Evid. 804(b)(3). This evidence clearly raises an inference that appellant’s confession was truthfid.

The military judge then restricted use of the statement to its proper scope, ie., for use as corroboration, but not as evidence before the members. Cf Mil.R.Evid. 105 (discussing “limited admissibility”); MiLR.Evid. 403. Once the military judge appropriately found the confession admissible, “[t]he amount ... of evidence introduced as corroboration” was “a factor to be considered by the trier of fact in determining the weight, if any, to be given to the ... confession.” MiLR.Evid. 304(g)(l)(emphasis added). Thus, I find no error in the military judge’s delicate handling of this evidence.

The majority also explains that the rationale behind the corroboration rule is to “ensure that the confession is not false.” 47 MJ at 192. However, in light of Article 31, Uniform Code of Military Justice, 10 USC § 831, the danger of such false confessions is slight and most likely arises when one is “suffering a mental or emotional disturbance or some other aberration.” See Commonwealth v. Farde, 392 Mass. 453, 466 N.E.2d 510, 513 (1984). Moreover, Wigmore points out that “[sjuch [false] confessions [of guilt], however, so far as handed down to us in the annals of our courts, have been exceedingly rare.” 7 Wigmore, Evidence § 2070 at 510 (Chad-bourn rev.1978).

Furthermore, Wigmore notes that the corroboration rule is, in the hands of unscrupulous attorneys, “often a positive obstruction to the course of justice.” Id. Finally, any danger of a voluntary false confession is equally well guarded against by the “careful scrutiny” of a “conscientious” military judge properly performing his evidentiary gate-keeping role. See McCormick on Evidence § 145 at 563 (W. Strong 4th ed.1992); Mil. R.Evid. 104 and 403.

In sum, appellant has said he committed a crime. Why do we not believe him? The military judge found the confession voluntary and sufficiently corroborated to go before the jury. In my opinion, the jury reached a reasonable, proper verdict in this case. See Jackson v. Virginia, 443 U.S. 307, 319, 99 *194S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Turner, 25 MJ 324 (CMA 1987). In this light, the strict corroboration-admissibility rule applied by the majority today is unnecessary and should not be countenanced. Accordingly, I would affirm.