June 24, 2019

Burying the Body—Dismantling the Corpus Delicti Rule and Adopting the Trustworthiness Standard (Part 1)

Evig_SamuelBy Samuel A. Evig

Editor’s Note: This is Part 1 of a two-part series.

This article originally appeared in the November 2013 issue of The Colorado Lawyer.

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 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why he confessed to something that did not happen, the jury nevertheless convicted him of all charges.[8] In an unpublished opinion, the Colorado Court of Appeals reversed the convictions based on the corpus delicti rule.[9] The prosecution petitioned for certiorari, requesting that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 alive.[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 stand-alone-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 may 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 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 note of caution is appropriate in surveying these cases—a note whose roots are grounded in a philosophical debate about the scope of the original corpus delicti rule, the scope of the trustworthiness rule, and whether the latter really is a substitute for or rather a reinterpretation of the former. Some judges (including the LaRosa dissenters) consider the trustworthiness standard to be the U.S. Supreme Court’s interpretation of the federal common law of corpus delicti.[35] Others assert corpus delicti no longer exists in the federal system and the trustworthiness standard is a wholly new construct.[36] Still others use the two terms somewhat interchangeably.[37]

In any event, the flexibility of the trustworthiness standard, at once its greatest asset and its greatest limitation, caused the Colorado Supreme Court to provide some additional guidance to help trial judges and lawyers apply the standard.[38] In doing so, the Court seemed to shift the focus of the inquiry from whether other evidence proved the crime occurred to whether other evidence proved the confession was reliable.[39] Of course, these two inquiries are related. If there is corroborating evidence of the crime, it automatically corroborates the trustworthiness of the confession, but the discussion in LaRosa seems focused on the circumstances surrounding the confession in a way that the analysis in Opper did not. The Opper court emphasized facts directly supporting the prosecution’s case quite apart from the confession, most critically the timing of the loans compared to the governmental decision. It said virtually nothing about the circumstances of Opper’s confession. The LaRosa Court, in contrast, articulated a test in which facts outside the confession (such as the timing of the loans in Opper) are but one way to establish its trustworthiness. This expanded test is both more and less inclusive than the corpus delicti rule.

The change is less inclusive because the trustworthiness standard can, in some cases at least, prevent the “incongruous” result presented by corpus delicti—where a false confession to a crime that actually happened, but one the confessor did not commit, still would result in a conviction.[40] After all, a strict application of corpus delicti would result in a conviction if the prosecution could show the crime demonstrably happened without the confession. In theory, the trustworthiness standard could prevent the conviction of a mentally ill person falsely claiming credit for an actual crime because the inquiry focuses on the trustworthiness of the confession itself.

The new standard is more inclusive because corroborating the confession is often much easier than showing a crime occurred with independent evidence. This change lessens the possibility of the wrongful acquittal. The LaRosa case itself just might be such an example of a wrongful acquittal under the corpus delicti rule that would, but for the due process issues, have been a rightful conviction under the trustworthiness standard. Of course, by tipping the scales in adopting this standard, the Court also increased the possibility of a wrongful conviction.

This is Part 1 of a two-part series. Stay tuned.

Samuel A. Evig is a deputy district attorney in the 18th Judicial District—sevig@da18.state.co.us. The views expressed in this article are not necessarily those of the 18th Judicial District Attorney’s Office.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

 

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[1] People v. LaRosa, 293 P.3d 567, 575 (Colo. 2013).

[2] In Dougherty v. People, 1 Colo. 514, 528 (Colo. Terr. 1872), announced in 1872 (before Colorado became a state), the Supreme Court of the Colorado Territory examined the doctrine and upheld a conviction based on the accused administering “boneset” to cause an abortion.

[3] Also sometimes called the “corroboration rule” or the “Opper corroboration rule.” See Moran, “In Defense of the Corpus Delicti Rule,” 64 Ohio State L.J. 817, 851-52.

[4] LaRosa, 293 P.3d at 577-78.

[5] Id. at 570-71.

[6] Id.

[7] Id. at 571.

[8] Id.

[9] Id. The Colorado Supreme Court’s opinion quotes portions of the unpublished decision. Based on those quotes, it appears the court of appeals decided the case based on the fact that prosecution’s non-confession evidence could not establish the crime actually occurred. Instead, the evidence showed only that LaRosa had a chance to commit the offense, something the court of appeals said “every custodial parent has on a virtually continuing basis.”

[10] Id. at 578-79. One of the difficult parts of interpreting this decision is whether, had the trustworthiness standard been applied to this case, the outcome might have been different. Although it is possible to read too much into this opinion, given the Court’s dissatisfaction with the corpus delicti rule and the specific criticism of the rule as sometimes frustrating justice, it is likely that the result would have been very different. Had the dissenters won the day, the result would have been different.

[11] Black’s Law Dictionary 346 (7th ed., West Group, 1999).

[12] LaRosa, 293 P.3d at 572, citing Downey v. People, 215 P.2d 892, 899 (Colo. 1950).

[13] Id.

[14] Moran, supra note 3 at 817, citing 2 Hale, Pleas of the Crown 290 (1678); Moran, supra note 3 at n.60, citing Perkins, “The Corpus Delicti of Murder,” 48 Virginia L.Rev. 173 (1962) and Margolis, “Corpus Delicti, State of the Disunion,” 2 Suffolk University L.Rev. 44 (1968).

[15] Moran, supra note 3 at 826-29. According to Moran, the doctrine came from English commentators and became a part of American jurisprudence. Moran traces the foundations of the rule to 17th century England.

[16] See Meredith v. People, 380 P.2d 227 (Colo. 1963) (rule operated to overturn conviction of man for engaging in “unnatural” sex acts with a 5-year-old boy); People v. Rankin, 554 P.2d 1107 (Colo. 1976) (rule overturned conviction for distributing drugs); People v. Robson, 80 P.3d 912 (Colo.App. 2003) (rule precluded trial of man accused of sexually assaulting his infant daughter); Owen v. People, 392 P.2d 163 (Colo. 1964) (rule overturned conviction for sexual assault and incest of a deceased 16-year-old victim); Cobianchi v. People, 141 P.2d 688 (Colo. 1943) (rule operated to overturn second-degree murder conviction); People v. Maestas, 508 P.2d 782 (Colo. 1973) (theft conviction reversed because of the rule); People v. Applegate, 509 P.2d 1238 (Colo. 1973) (forgery conviction reversed based on the rule); People v. T.A.O., 36 P.3d 180 (Colo.App. 2001) (rule operated to overturn adjudication of a juvenile who confessed to sexually touching his sister).

[17] LaRosa, 293 P.3d at 572, citing McCormick on Evidence § 145 at 595.

[18] Id. at 574. The Court used this argument to conclude the rule was “originally erroneous.” This reasoning is somewhat puzzling because the rule did stop the conviction of someone falsely confessing to a crime that did not happen, a laudable if narrow goal. See Moran, supra note 3 at 836-37. If the original purpose of the rule was to stop the conviction and subsequent execution of someone for a crime that did not happen, how is the rule originally erroneous when it protects against the very harm it was designed to prevent?

[19] Id.

[20] Miranda v. Arizona, 384 U.S. 436 (1966).

[21] Id. at 574-75. But see generally Moran, supra note 3. Moran defends the corpus delicti rule using a murder case he defended to show that no constitutional doctrines involving confession would have operated to prevent the conviction of his client, and further asserts the trustworthiness standard is too malleable to protect suspects.

[22] Id.

[23] See State v. Mauchley, 67 P.3d 477, 487-488 (Utah 2003) (noting that different states have taken different approaches to whether corpus delicti applies to aggravators for capital murder, that some states specifically exclude the rule from applying to some crimes because of the difficulty, and ultimately abolishing the rule rather than attempting to work around the rule’s limitations). The problem of deciding what elements exactly establish the body of the crime is an even greater difficulty in states such as Utah, which require proving corpus delicti before the confession is admitted.

[24] LaRosa, 293 P.3d at 575, citing State v. Parker, 337 S.E.2d 487, 494 (N.C. 1985) (noting the difficulty of applying corpus delicti in crimes without a tangible injury and providing a broad discussion of the rule), and Mauchley, 67 P.3d at 488 (noting that other jurisdictions had to “selectively apply” the rule and ultimately deciding to abandon the rule). As noted by the Court in LaRosa, “the rule may operate to bar conviction for crimes committed against the most vulnerable victims, such as infants, young children and the mentally infirm.” Such concerns are valid; a number of cases involving the corpus delicti rule are horror shows. See supra note 16. See also Gibbard, “Corpus Delicti: Three Unusual Colorado Cases,” 38 The Colorado Lawyer 83 (March 2009) (a historical examination of the rule reversing three convictions, one involving a victim possibly being beaten to death, the second involving a victim dying after a possible illegal abortion and a “rabbit test,” and the third involving a man’s body being interred in his yard by his wife after either a murder or suicide). See also Williams v. People, 158 P.2d 447 (Colo. 1945) (mother put on trial after the discovery of the bodies of three of her babies—two of them mummified—found in her belongings). The Court is correct in articulating that the rule operates to prevent convictions in some cases where proving an actual injury is difficult; however, some might argue this is one purpose of the rule.

[25] LaRosa, 293 P.3d at 575, citing Robson, 80 P.3d at 913-14, and Meredith, 380 P.2d at 228.

[26] Id.

[27] Opper v. U.S., 348 U.S. 84 (1954) (prosecuting defendant for bribing a federal employee); Smith v. U.S., 348 U.S. 147 (1954) (prosecution for tax evasion); U.S. v. Calderon, 348 U.S. 160 (1954) (prosecution for tax evasion).

[28] Opper, 348 U.S. at 84-87.

[29] Id. at 88.

[30] Id. at 91-95.

[31] Id. at 93.

[32] Id. at 93-94.

[33] Id. at 93.

[34] See generally Schopler, Annotation, “Corroboration of Extrajudicial Confession or Admission,” 45 A.L.R.2d 1316 (originally published in 1956); Weisman, Annotation, “Sufficiency of Evidence to Support Homicide Conviction Where No Body Was Produced,” 65 A.L.R.6th 359 (originally published in 2011).

[35] See LaRosa, 293 P.3d at 580 (stating the trustworthiness standard “was therefore not a new restriction on the effect of confessions at all, but rather the Court’s definitive interpretation of the common-law rule, for the federal courts”).

[36] See Fontenot v. State, 881 P.2d 69, 78 (Okla.Crim.App. 1992) (Fontenot II),citing U.S. v. Kerley, 838 F.2d 932, 940 (7th Cir. 1988).

[37] See State v. Heiges, 779 N.W.2d 904, 909-12 (Minn.App. 2010) (Minnesota also has a statute requiring corroboration to sustain a conviction based on a confession—indicating it is a codification of the common-law rule—and using trustworthiness standard cases to support its position). See also State v. Weisser, 150 P.3d 1043, 1048 (N.M.C.A. 2006) (conflating the trustworthiness doctrine with corpus delicti) distinguished by State v. Wilson, 248 P.3d 315 (N.M. 2010).

[38] LaRosa, 293 P.3d at 577-78. In footnote 9 of the opinion, the Court notes several attempts by other courts to outline a proper application of the rule.

[39] Id.

[40] See In re K.A., 60 A.3d 442 (D.C.App. 2013). There, police searched a home and found guns under the mattress of a grandfather living at the home. About an hour after learning of the arrest, and while police were still on scene, K.A. confessed that the guns belonged to him and told officers to release his grandfather. K.A. provided a more detailed statement in which he identified the guns, but the court found his confession to be insufficiently corroborated. A strict application of the corpus delicti rule in this case would have created a different result because K.A. did, indeed, confess to a crime that actually occurred (possession of unregistered firearms).

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