Lead Opinion
Jоseph T. McGill was convicted of two counts of aggravated indecent liberties with a child after the district court denied his motion to dismiss or, in the alternative, his motion in limine to exclude evidence of three extrajudicial confessions. Mc-Gill appeals, arguing that the district court erred in denying his pretrial motions because the State did not offer sufficient independent evidence to establish the corpus delicti of the crimes charged apart from his alleged extrajudicial confessions. For the reasons set forth herein, we affirm the district court’s judgment.
Factual and Procedural Background
On May 25, 2012, the State charged McGill with two counts of aggravated indecent liberties with a child. The alleged victims were McGill’s daughters, E.T.M. and L.A.M. Count I alleged that Mc-Gill engaged in lewd fondling or touching of E.T.M. in 2011, when E.T.M. was 1 year old. Count II alleged that McGill engaged in lewd fondling or touching of L.A.M. in 2005, when L.A.M. was 3 months old.
On June 7,2012, the district court conducted a preliminary hearing. The State called McGill’s wife, Jessica McGill, as a witness and she testified to the following account. When L.A.M. was born on August 11, 2005, Jessica was living with her parents and McGill was living in an apartment nearby. Jessica returned to work in late October 2005 when L.A.M. was about 3 months old. While Jessica was at work, McGill often cared for L.A.M. McGill usually watched L.A.M. at Jessica’s parents’ house, and it was not uncommon for him to do so by himself. When Jessica worked the 1 to 8 p.m. shift at her job, it was McGill’s responsibility to feed and bathe L.A.M. and put her to bed.
McGill and Jessica married in August 2006. The couple had three more children; the youngest was E.T.M., born July 12,2010. McGill and Jessica began living apart in March 2011, but McGill moved back in with Jessica and the children shortly after E.T.M.’s first birthday on July 12,2011. Both McGill and Jessica were working outside the home at drat time. McGill typically got off work at 3:30 p.m. and would pick up
On May 7, 2012, Jessica was at work and scheduled to stay until 8 p.m. McGill called Jessica and said that she needed to leave work and meet him at his therapist’s office because he had something important he needed to tell her. Jessica could not leave work, so she told McGill she would meet him at home at 8 p.m. and he could tell her what he needed to tell her. Jessica called McGill a short time later to ask him what was going on, but McGill said he could not tell her over the phone “because it would devastate [her].” In a later phone call that day, McGill told Jessica that if he told her what he had done, she would hate him forever and would not want to see him or be with him. McGill also said he would be moving out of the couple’s house.
Jessica called McGill on her way home from work and he agreed to tell her what happened if she would not tell anyone else. When Jessica arrived at the couple’s house, McGill came outside and sat in the vehicle with her. Inside the car, McGill told Jessica that when L.A.M. was about 3 months old, he had put his penis in her mouth and had her suck on it. McGill also said that when E.T.M. was about 1 year old, he was talcing a shower with her and rubbed his penis against her vagina.
Jessica was the only witness at the preliminary hearing. At the conclusion of the hearing, the district court bound McGill over for trial. McGill entered a plea of not guilty. On June 11,2012, McGill filed a motion to dismiss or, in tire alternative, a motion in limine to exclude the evidence of his alleged confessions. McGill asked the district court to dismiss the case pursuant to the common-law corpus delicti rule that an accused may not be convicted of a crime based solely on an uncorroborated confession. In tire alternative, McGill asked for,an order excluding any evidence of his alleged confessions.
On August 17, 2012, the district court conducted a hearing on the pretrial motions filed by McGill, including the motion to dismiss/motion in limine. The State called Bradley Mills, owner of Mills Family Counseling, as its first witness and he testified to the following account. On May 7, 2012, McGill came to Mills’ office for his second scheduled session of a court-ordered sex offender treatment program arising from an unrelated case. Mills had arranged for McGill to taire a polygraph examination earlier drat day, and McGill arrived for his session after completing part of the paperwork for the polygraph examination. When McGill came into Mills’ office, he was having what Mills characterized as an emotional breakdown. McGill was tearful and pacing the floor. He would sit down, stand up, and then pace some more. McGill said things like, “I’m in trouble” and “I need help.” This behavior went on for about 35-40 minutes.
McGill was struggling to maintain any kind of composure and acted as though something he had revealed during the polygraph test was going to be a problem for him — he was afraid he was going to receive additional charges. As their scheduled session neared its end, Mills told McGill that he was going to receive a copy of Mc-Gill’s polygraph test, so McGill might as well tell him what he was so worried about. McGill told Mills that he had put his penis in his child’s mouth and fondled her 6 years ago. Then McGill said that he had put his penis in his other child’s mouth about a year ago. After McGill’s session ended, Mills called SRS and reported suspected abuse.
The State then called its second witness, Donald L. Williams, owner of a business that conducts private investigations and polygraph tests, who testified to tire following account. McGill was referred to Williams to complete a polygraph examination and came to Williams’ office for an appointment in early May 2012. As was his standard procedure before administering a polygraph examination, Williams asked McGill to fill out a
Also in the questionnaire, McGill detailed a sexual encounter with “Anne” when he was 20 years old and she was 3 months old. Anne is L.A.M.’s middle name. McGill answered that he had bathed or showered with her, that she had licked or sucked his penis, and that her mouth had been on his private parts. McGill later refused to take the scheduled polygraph examination. Williams faxed the contents of tire questionnaire to McGill’s probation officer.
By agreement of the parties, the State noted that the district court could also consider Jessica’s preliminary hearing testimony as part of the evidence on the motion to dismiss/motion in limine. No other evidence was presented. At the conclusion of the hearing, the judge took the matter under advisement.
On September 21, 2012, the parties reconvened before the district court for its ruling. The district judge denied McGill’s motion to dismiss/motion in limine, stating:
“My ruling is as follows: Defendant’s motion to dismiss is denied. I don’t believe a court-ordered dismissal is an appropriate remedy for what the defendant is requesting in this case.
“The question and issues raised by the defense I think essentially are a sufficiency of evidence issue. And I just don’t think that a motion or an order dismissing the case is an appropriate remedy here.
“As for the motion in limine in which the defendant asks for an order to suppress or to find inadmissible the defendant’s three confessions, the defendant’s motion is denied. The defendant’s three confessions are admissible in evidence.”
On January 24, 2013, the district court conducted a bench trial on stipulated facts. The written stipulated facts do not appear in the record on appeal, but the record reflects that the parties agreed that the district court could consider all the evidence presented at the preliminary hearing and the hearing on the pretrial motions. Based on the stipulated evidence, the district court found McGill guilty of both counts of aggravated indecent liberties with a child. McGill timelyappealed his convictions.
Did the District Court Err in Denying McGill’s Pretrial Motions?
McGill claims the district court erred in denying his pretrial motion to dismiss or, in the alternative, his motion in limine to exclude the evidence of his confessions. McGill argues that the State did not present sufficient evidence to satisfy the corpus delicti rule as expressed by the United States Supreme Court and the Kansas Supreme Court. In particular, McGill asserts that Kansas courts do not distinguish between extrajudicial confessions made to law enforcement personnel and those made to other persons. He also argues that evidence of opportunity to commit the crime charged was insufficient in order to establish the corpus delicti. The State counters that the district court did not err in denying McGill’s motion upon finding that the State had presented evidence corroborating McGill’s confessions, sufficient to satisfy the corpus delicti rule.
McGill and the State agree that this court should apply an abuse of discretion standard in reviewing the district court’s decision to deny the pretrial motion to dismiss/motion in limine. A judicial action constitutes an abuse of discretion if the action (1) is arbitraiy, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward,
The Latin term “corpus delicti” means the body of the offense— the substance of the crime. State v. Yarrington,
The corpus delicti rule as applied by most courts focuses on whether corroborative evidence establishes the trustworthiness of the confession, rather than on whether the corroborative evidence establishes that the crime occurred. In Smith v. United States,
“[I]ts foundation lies in a long history of judicial experience with confessions and in the realization that sound law enforcement requires police investigations which extend beyond the words of the accused. Confessions may be unreliable because they are coerced or induced, and although separate doctrines exclude involuntary confessions from consideration by the jury, [citations omitted], further caution is warranted because the accused may be unable to establish the involuntary nature of his statements. Moreover, though a statement may not be 'involuntary’ within the meaning of this exclusionary rule, still its reliability may be suspect if it is extracted from one who is under foe pressure of a police investigation — whose words may reflect foe strain and confusion attending his prеdicament rather than a clear reflection of his past. Finally, the experience of foe courts, foe police and the medical profession recounts a number of false confessions voluntarily made, [citation omitted]. These are the considerations which justify a restriction on foe power of the jury to convict, for tins experience with confessions is not shared by the average juror. Nevertheless, because this rule does infringe on foe province of the primary finder of facts, its application should be scrutinized lest the restrictions it imposes surpass foe dangers which gave rise to them.” Smith,348 U.S. at 153 .
In Smith, a defendant charged with tax evasion made extrajudicial statements representing the amount of tax money he thought he owed. The defendant appealed his conviction, arguing that his extrajudicial statement was not sufficiently corroborated by independent evidence. The Supreme Court addressed the quantum of corroboration necessary to prove the existence of the crime charged, holding that “the corroborative evidence does not have to prove the offense beyond a reasonable doubt, or even by a preponderance, as long as there is substantial independent evidence that the offense has been committed, and the evidence as a whole proves beyond a reasonable doubt that defendant is guilty.”
In Opper v. United States,
The Supreme Court again discussed the corpus delicti rule in Wong Sun v. United States,
In Kansas, the corpus delicti rule is a judicially created and recognized doctrine and is basically consistent with United States Supreme Court precedent on the subject. The Kansas Supreme Court has adopted the general rule that an uncorroborated extrajudicial statement is insufficient to sustain a conviction. State v. Tillery,
Do Kansas courts distinguish between extrajudicial confessions made to law enforcement personnel and those made to other persons?
McGill contends that the corpus delicti rule requires corroborating evidence for all extrajudicial confessions, regardless of whether they are made to law enforcement or some other person. The State counters that our Supreme Court has distinguished between confessions to law enforcement personnel and non-law enforcement individuals and asserts that only confessions to law enforcement require corroboration.
McGill argues that the fact a defendant confessed to a non-law enforcement individual is irrelevant in determining whether there is sufficient corroborating evidence to establish the corpus delicti. He cites the decision of the Supreme Court of Iowa in State v. Schomaker,
“ ‘Confessions are either judicial or extrajudicial. Judicial confessions are those made in conformity to law before a committing magistrate or in court in the course of legal proceedings. Extrajudicial confessions are those which are made by a party elsewhere than before a magistrate or in court. These, by the great weight or authority, independent of statute, must be corroborated by proof of the corpus delicti.’ [Citation omitted.]”
Based on this authority, McGill asserts that any extrajudicial confession, whether made to law enforcement or some other person, must be corroborated by independent evidence in order for the corpus delicti to be sufficiently established. He also argues that it is “well-established” that one extrajudicial
The State asserts that our Supreme Court’s decision in State v. Waddell,
In response, the State argued that even without the defendant’s confession to police, his guilt was established by numerous factors including the fact that the defendant confessed to a friend and the defendant told his attorney that he wanted to tell him how he tolled the victim. The Waddell court agreed that the corroboration rule had been met, stating:
“The details of Waddell’s confession are supported by die evidence: (1) A bra hook was discovered, and the bra had been forcibly removed; (2) Waddell’s white t-shirt contained fabric consistent widi the fiber under Stephanie’s fingernails; (3) a set of keys was barely observable and a bra was found under the sweater that could not be seen undl die sweater was removed; and (4) bruising on Stephanie’s head was consistent with her having been hit. The weight and credibility of a confession is for the jury to determine. Free, voluntaiy, and deliberate confessions are entitled to great weight. [Citation omitted.]”255 Kan. at 433 .
The State acknowledges that the Waddell court did not expressly rely on the defendant’s confessions to his attorney and friend in affirming his convictions, but it argues that the court implicitly distinguished between those confessions and the defendant’s confession to police, as it was only the latter confession that the court viewed as needing corroboration. Furthermore, the State contends that the court’s opinion in Waddell suggests that one confession can be used to corroborate another confession. The State points out that in Waddell, the prosecution relied in part on the defendant’s statements to his attorney and friend to corroborate his confession to police and our Supreme Court found that the corroboration rule had been met. See
We are not persuaded by the State’s argument that Waddell suggests that extrajudicial confessions made to law enforcement officers are distinguishable from those made to other persons in terms of the corpus delicti rule. Rather, as a general rule, we agree with McGill that the corpus delicti rule requires corroborating evidence for all extrajudicial confessions, regardless of whether they are made to law enforcement or some other person. As the United States Supreme Court noted in Smith, “the experience of the courts, tire police and the medical profession recounts a number of false confessions voluntarily made.”
McGill’s argument that one extrajudicial confession may not be used to corroborate another extrajudicial confession is more problematic, and on this point, a distinction may be drawn between confessions made to law enforcement officers and confessions made to other persons. We agree with McGill that as a general rule, a confession made to law enforcement officers cannot be corroborated by a second confession made to law enforcement officers for the purpose of satisfying the corpus delicti rule. If one confession made to law enforcement officers could be used to corroborate another confession made to law enforcement officers, then law enforcement officers investigating a crime could always circumvent the corpus delicti rule simply by interrogating an accused person twice in order to obtain separate uncorroborated confessions as evidence to support the accused’s guilt of a crime.
Is evidence of opportunity to commit the crime sufficient to establish the corpus delicti?
McGill also argues the fact that he had a mere opportunity to commit the crimes charged is insufficient to establish the corpus delicti independently from his alleged confessions. The State disagrees, contending that to the extent McGill’s confessions required corroboration, his opportunity to commit the crimes provided the “slight or prima facie showing” necessary to establish the corpus delicti. See Pyle,
McGill cites a number of cases from other jurisdictions holding that mere opportunity to commit the crime charged is insufficient to establish the corpus delicti. See People v. Lambert,
“The evidence showing that defendant had an opportunity to commit the offenses establishes only that — that he had the opportunity; it does not tend to establish that the offenses actually occurred. [Citations omitted.]... To determine on this record that sexual abuse occurred, a factfinder would have to infer that defendant has a propensity to sexually abuse small children and that he acted in conformity with that propensity on the occasion in question. That is not a permissible inference. [Citation omitted.]”218 Or. App. at 177 .
Based on the persuasive authority from other jurisdictions cited by McGill, we agree that evidence of a person’s opportunity to commit the crime, standing alone, is insufficient to corroborate an alleged extrajudicial confession in order to establish the corpus de-licti. However, as we will discuss more fully herein, we conclude that evidence of a person’s opportunity to commit the crime may be considered as one of multiple factors in order to corroborate an extrajudicial confession made by an accused.
Was there sufficient corroboration to allow the introduction of Mc-Gill’s extrajudicial statements?
Under the corpus delicti rule, an accused may not be convicted solely on the basis of an uncorroborated confession. But as the United States Supreme Court stated in Smith,
The Kansas Supreme Court has adopted the general rule that an uncorroborated extrajudicial statement is insufficient to sustain a conviction. Tillery,
In State v. Bradford,
“ ‘die quantum of independent evidence necessary to corroborate the corpus de-licti in a criminal prosecution relying upon the extrajudicial confession of an accused need not be great. [Citation omitted.] So long as there is some evidence which renders the corpus delicti more probable than it would be without the evidence, we believe that the essential purposes of the rule have been served. [Citations omitted.]’ ”254 Kan. at 139 .
Applying this rule to the facts of the case, the Bradford court determined that the evidence of the victim’s purse and keys at the crime scene independently established the corpus delicti of attempted aggravated robbery. The court concluded:
“Proof of the corpus dehcti does not require the State to prove by evidence independent of Bradford’s confession that the attempted robbery was committed by Bradford. The State merely needs to corroborate the fact that, given the evidence, it is more probable than not that [die victim] was killed during the course of an attempted robbery. Sufficient corroborating proof that satisfies this burden is present in the case at bar.”254 Kan. at 139-40 .
The touchstone of the corpus delicti rule is that an accused may not be convicted of a crime based splely on an uncorroborated confession without some indicia of reliability or trustworthiness to support the confession. See Opper,
McGill made three separate extrajudicial confessions. He told Jessica that when L.A.M. was 3 months old, he put his penis in her mouth and had her suck on it, and that when E.T.M. was 1 year old, he was taking a shower with her and rubbed his penis against her vagina. McGill told his therapist that he had put his penis in his child’s mouth and fondled her 6 years ago and he had put his penis in his other child’s mouth about a year ago. Finally, McGill wrote on his pre-polygraph questionnaire that he had a sexual encounter with “Theresa” (E.T.M.) when he was 27 years old and she was 1 year old. In response to yes/no questions, McGill answered that he had touched her vagina,
The circumstantial evidence elicited in Jessica’s testimony bolstered McGill’s three extrajudicial confessions. First, Jessica’s testimony established that L.A.M. would have been about 3 months old and E.T.M. would have been about 1 year old at the time of the crimes that McGill confessed to committing, exactly the ages that McGill described in his confessions. Second, her testimony established that E.T.M.’s and L.A.M.’s middle names matched the names of the victims described in McGill’s prepolygraph questionnaire.
Third, Jessica’s testimony established that McGill was frequently alone with his daughters at the relevant timе periods indicated for each of the crimes to which he confessed. As we have previously discussed, evidence of a person’s opportunity to commit the crime, standing alone, is insufficient to corroborate an alleged extrajudicial confession in order to establish the corpus delicti. However, the evidence that McGill had the opportunity to commit the crimes in the manner that he stated in his confessions may be considered as one of multiple factors that supports the reliability of his admissions.
Fourth, Jessica’s testimony established that McGill sometimes showered with E.T.M., which is consistent with his statements that he rubbed his penis on E.T.M. while taking a shower with her. We find Jessica’s corroborative testimony on this point to be particularly compelling as we view it to be quite unusual in most families for a father to shower with a 1-year-old daughter. Jessica’s testimony on this point independently corroborates a significant unique fact contained in McGill’s confessions.
Fifth, as we have previously stated, we believe that some weight can be given to the fact that McGill made three separate statements to non-law enforcement persons before law enforcement officers became involved in the case. McGill cannot claim that he was under the pressure of a police investigation when he initially confessed to non-law enforcement persons to molesting his children. The truth of McGill’s confessions was fortified by the fact that McGill confessed three separate times to non-law enforcement persons, providing consistent details about how he molested his children, before law enforcement officers became involved in the case.
Finally, McGill’s demeanor and his own behavior at the time he made his statements bolster the reliability and trustworthiness of the confessions. When McGill came to Mills’ office for the therapy session, he was having what Mills characterized as an emotional breakdown. McGill was tearful and pacing the floor. He would sit down, stand up, and then pace some more. McGill said things like, “I’m in trouble” and “I need help.” Likewise, when McGill talked with Jessica on the phone, he said he could not tell her what he had done over the phone “because it would devastate [her].” In a later phone call that day, McGill told Jessica that if he told her what he had done, she would hate him forevеr and would not want to see him or be with him. All of this testimony by Jessica “fortifies the truth of the confession[s]” made by McGill. See Wong Sun,
We conclude that the circumstantial evidence offered by the State, particularly through Jessica’s testimony, was sufficient to corroborate McGill’s extrajudicial confessions such that the confessions were admissible as evidence under existing Kansas/United States Supreme Court precedent. McGill’s confessions contained significant unique facts that were independently corroborated, and the statements were given in a manner that supported the reliability'of the admissions. Under these circumstances, the district court did not err in denying McGill’s pretrial motions to dismiss or, in the alternative, to exclude the evidence of his confessions.
If this case is further reviewed, our Supreme Court may want to clarify the application of the corpus delicti rule in Kansas. The
Our system of justice requires that for any crime charged, the government must prove the defendant guilty beyond a reasonable doubt. If we trust this system to work as it should, there is little need to have any special rules governing the admissibility of uncorroborated confessions. 'We currently have a well-developed body of law that protects the rights of an accused in a custodial interrogation. In addition, a court should be required to ensure that any extrajudicial confession satisfies a threshold standard of trustworthiness in order to be admissible as evidence. In making this determination, a court should consider and evaluate all the facts and circumstаnces of each particular case.
Here, the details of McGill’s confessions were corroborated by Jessica’s testimony. There were no inconsistencies in McGill’s statements that would lead anyone to suspect that he might be fabricating a stoiy. There is no evidence in the record that McGill suffers from any mental disorder, low IQ, or cognitive or learning disability, or that he has a histoiy of making false accusations about himself or anyone else. McGill does not even claim that his confessions were false. Viewed in the light most favorable to the State, McGill’s three extrajudicial confessions coupled with the indirect and circumstantial corroborative evidence provided by the State were sufficient for a rational factfinder to find McGill guilty of aggravated indecent liberties with a child beyond a reasonable doubt.
Affirmed.
* * *
Concurrence Opinion
concurring: I join the majority opinion fully as it is a correct application of the corpus delicti rule as it currently exists in Kansas to the facts of the case at hand. I write separately in order to bring what is, in my view, needed clarity to the rule’s function and application in Kansas, consistent with the decisions of the Kansas Supreme Court over the past century.
It has long been held that the corpus delicti must be proved before a conviction can be sustained. Simply put, a crime must be shown to have occurred. It is often said that the corpus delicti consists of two elements: (1) proof of an injury and (2) proof that the injury was caused by criminal means. So, for example, the corpus delicti of homicide consists of “the death of the alleged victim and the existence of some criminal agency as the cause.” State v. Pyle,
A natural extension of the rule developed at common law holding that a bald extrajudicial confession, absent an independent showing of the corpus delicti of the alleged crime, was insufficient to sustain a conviction. The rule was born out of a judicial recognition that false confessions do occur as a result of varying factors including: duress; a desire to conceal the guilt of another; or a genuine— though false — belief held by the confessor of his own guilt. Thus, the fundamental purpose of the rule that prohibits convictions basеd on bald extrajudicial admissions or confessions without any supporting proof of the corpus delicti is to protect against false confessions. It is not intended to protect against confessions which may or may not be true but which were obtained in derogation of the rights of the accused. Numerous constitutional provisions provide such protections and the corpus delicti rule has never
Applying the Formal Prima Facie Corpus Delicti Rule in Kansas
The application of this rule to the myriad of crimes and the diverse factual scenarios courts may confront has been difficult and often confusing. The strict and formalized application of the rule is fairly straightforward, typically arises in the context of a homicide case, and is often stated as follows:
“In homicide cases the corpus delicti is established by proof of two facts: that one person was killed and that another person did the killing. The corpus delicti may be proved by direct testimony, by indirect or circumstantial evidence, or by a combination of both.
“The elements for the corpus delicti of murder must be established independently of admissions or confessions of the defendant. However, as a basis for introduction of the defendant’s confession or admission, the prosecution is not required to establish the corpus delicti by proof as clear and convincing as is necessary to establish guilt; a slight or prima facie showing is sufficient.” State v. Grissom,251 Kan. 851 , Syl. 2-3,840 P.2d 1142 (1992).
There is a significant line of cases in Kansas applying the strict and formalized version of the rule requiring the corpus delicti to be established independent of any confession of the defendant.
In Pyle the Kansas Supreme Court considered for tire first time a case in which tire State’s proof of the corpus delicti in a homicide prosecution rested entirely on circumstantial evidence — i.e., the State did not produce a dead body. After reciting the formal rule, the Pyle court held that tire State had produced sufficient evidence, independent of the defendant’s admissions, that the victim was dead as a result of foul play. Among other evidence, the court relied on the fact that the victim had gone missing and was never seen again; that there was bad blood between the victim and the defendant; and that the defendant had concocted an elaborate alibi to hold that there was sufficient circumstantial evidence from which a jury could infer the corpus delicti of the charged crime.
In Grissom the Kansas Supreme Court again applied the formal rule to a homicide case in which tire victims’ bodies were never recovered. The Grissom court noted that “in order to establish tire corpus delicti, the State only needed to prove that [the three victims] were lulled by criminal means, not that Grissom was the killer.”
In State v. Bradford,
“Evidence independent of a defendant’s confession is required to prove an underlying felony in a felony-murder case. Such evidence need not, however, be sufficient by itself to prove the underlying felony. The quantum of independent evidence necessary to corroborate the coipus delicti in a criminal prosecution relying upon tire extrajudicial confession of an accused need not be great. So long as there is some evidence which renders the corpus delicti more probable than it would be withoutthe evidence, the essential purposes of the independent evidence rule have been served.”
“A conviction of even the gravest offense may be sustained by circumstantial evidence. Proving the corpus delicti does not require the State in a felony-murder case arising from an alleged attempted robbery to prove that tire attempted robbery was committed by tire defendant. The State merely needs to corroborate the fact that, given tire evidence, it is more probable than not that the victim was failed during the course of an attempted robbery.”
The court went on to find that sufficient circumstantial evidence of the attempted robbery had in fact been introduced.
In State v. Dang,
“The simultaneous or near-simultaneous deaths of a young woman and her small child suggests that they did not die from natural causes. The location of the bodies and their being wrapped up tend to eliminate the possibilities of murder/suicide, double suicide, and accident. These facts support the State’s theory that the deaths of Hong Anil and Hector Bui were by criminal means. Nothing more than this prima facie showing is necessary to establish the corpus delicti for homicide.”267 Kan. at 209 .
The defining principle of Pyle and its progeny is that die independent evidence must establish a prima facie case that the crime charged actually occurred. The independent evidence required in these cases has nothing to do with the mode of the crime’s commission, the time of its commission, the identity of the perpetrator, or any other specific factual details that might have attended the crime.
Applying a Trustworthiness or Corroboration Standard in Kansas
The line of decisions requiring a strict prima facie showing of the corpus delicti itself are not, however, the only cases to apply some version of the corpus delicti rule in Kansas. There is another equally significant line of decisions running parallel in time and devеlopment to Pyle and its progeny that apply a different version of the rule.
Early on, the Kansas Supreme Court recognized the difficulties inherent in applying the formal corpus delicti requirement to cases in which the harm or injury suffered is less tangible and more inchoate. Such difficulties have tended to arise especially in cases of sexual crimes. In State v. Cardwell,
The court in Cardwell understood that certain crimes — for example, when there is a clear and tangible physical injury or harm as there is in a homicide — -should by their nature produce substantial independent evidence of the corpus delicti. On the other hand, different types of crimes — for example, when the harm may be inchoate as it is in certain instances of sexual abuse — are by their nature less likely to producing evidence of the corpus delicti apart from the defendant’s confession itself. In such cases, independent evidence is still required in order to vindicate the purpose of the rule to protect against false confessions, however, the independent evidence may corroborate tire facts contained in tire admissions rather than the corpus delicti itself. This, according to the Kansas Suprеme Court in Cardwell,
In State v. Bell,
It must be noted that in both Cardwell and Bell tire child victims had initially reported the rapes only to recant their earlier statements at trial on the grounds that those earlier statements had been coerced. Thus, those earlier reports could also be relied upon to establish the corpus delicti. This does not alter the fact, however, that Cardwell and Bell stand for the proposition that the law does not insist on a dogmatically formal prima facie showing of the corpus delicti in cases where such a showing is not reasonably attainable, and that, in fact, the corpus delicti may be shown through confessions or admissions when those confessions or admissions are “supported by circumstantial evidence tending to corroborate” them. Cardwell,
Thus, the primary distinction between Pyle and its progeny and Cardwell and its progeny lies in the different demands as to the land of independent evidence required in order to sustain a conviction. Each rule requires independent evidence, however, Pyle requires a prima facie showing of the fact of the crime itself, while Cardwell and Bell, in recognition of the reality that there are certain inchoate crimes which do not produce a tangible and physical injury, held that it is sufficient if the independent evidence corroborates the facts contained in the defendant’s confession, thus rendering it sufficiently reliable to permit a jury to infer the fact of the crime.
After giving a brief histoiy of the use of the formal prima facie corpus delicti rule in federal common law, the Supreme Court set forth the issue in Smith as follows:
“The first issue is whether the requirement of corroboration may properly be applied to the crime of tax evasion. The corroboration rule, at its inception, served an extremely limited function. In order to convict of serious crimes of violence, then capital offenses, independent proof was required that someone had indeed inflicted the violence, the so-called corpus delicti. Once the existence of the crime was established, however, the guilt of the accused could be based on his own otherwise uncorroborated confession. But in a crime such as tax evasion there is no tangible injury which can be isolated as a corpus delicti. As to this crime, it cannot be shown that the crime has been committed without identifying the accused. Thus we are faced with the choice either of applying the corroboration rule to this offense and according the accused even greater protection than the rule affords to a defendant in a homicide prosecution [citations omitted] or of finding the rule wholly inapplicable because of the nature of the offense, stripping the accused of this guarantee altogether. We choose to apply the rule, with its broader guarantee, to crimes in which there is no tangible corpus delicti, where the corroborative evidence must implicate the accused in order to show that a crime has been committed. [Citations omitted.]”348 U.S. at 153-54 .
In applying the rule to crimes in which there is no tangible corpus delicti, the Smith Court asked “whether it is sufficient if the corroboration merely fortifies the truth of the confession, without independently establishing the crime charged.”
In Opper, decided the same day, the Supreme Court provided a more detailed account of the divergent applications of the corpus delicti rule that had muddied the waters leading to the Court’s pronouncements of that day.
“On [corroboration of admissions] the cases in tire federal courts show divergence. . . . Some cases would seem only to require . . . proof of any corroborating cir-eumstances . . . which goes to fortify the truth of the confession or tends to prove facts embraced in the confession. There is no necessity that such proof touch the corpus delicti at all, though, of course, the facts of the admission plus the corroborating evidence must establish all elements of the crime.
“Other decisions tend to follow the rule ... that the corroboration must consist of substantial evidence, independent of the accused’s extrajudicial statements, which tends to establish the whole of the corpus delicti.
“Whether the differences in quantum and type of independent proof are in principle or of expression is difficult to determine. Each case has its own facts admitted and its own corroborative evidence, which leads to patent individualization of the opinions.”348 U.S. at 92-93 .
Against this backdrop, the Opper Court held:
“[W]e think the better rule to be that the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti. It is necessary, therefore, to require the Government to introduce substantial independent evidencewhich would tend to establish the trustworthiness of the statement. Thus, the independent evidence serves a dual function. It tends to make the admission reliable, thus corroborating it while also establishing independently the other necessary elements of the offense. [Citations omitted.] It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a juiy 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.” 348 U.S. at 93 (citing Smith,348 U.S. 147 ).
Smith and Opper, therefore, with reasoning remarkably similar to the earlier Kansas Supreme Court decision in Cardwell, moved the federal common-law application of the corpus delicti rule away from its previous formalized incarnation and towards what has beеn referred to since as foe “trustworthiness rule.” Subsequent federal decisions have suggested that the formal corpus delicti rule has not been abandoned altogether in federal common law, but that it has been restricted to cases where there is a clear and tangible harm or injury. See, e.g., Wong Sun v. United States,
On at least two occasions since, the Kansas Supreme Court has cited Smith or Opper as persuasive and authoritative law and has applied the trustworthiness standard oí Smith, Opper, and Cardwell. Our high court has never, however, explicitly described the rule this way in application, nor has it ever attempted to distinguish the modified corpus delicti rule found in Cardwell, Smith, and Opper from the formal corpus delicti rule elucidated and applied in Pyle and its progeny.
First, in State v. Tillery,
In the case State v. Waddell,
Likewise, other corpus delicti cases in Kansas have tended to confuse and conflate the Pyle analysis and the Cardwell analysis. For example, in State v. Higdon,
Other Jurisdictions Adopting the Trustworthiness Standard
Though varied in application, at least 16 states and the District of Columbia have adopted some version of the trustworthiness standard. See State v. Bishop,
The Tennessee Supreme Court explained:
“American criminal laws have become more numerous and complex, and it is sometimes difficult to distill a violation into a particular tangible injury. For example, inchoate crimes such as attempt and conspiracy, as well as crimes like tax evasionand child molestation, may leave behind no tangible corpus delicti to corroborate the defendant’s confession. Although some jurisdictions treat such crimes as exceptions to the corpus delicti rule, other jurisdictions point to these crimes as examples of why the rule is outdated. [Citation omitted.]
“Reflecting these criticisms, many American jurisdictions have abandoned the traditional corpus delicti rule. The United States Supreme Court largely led the way by adopting what is known as the ‘trustworthiness’ standard in [Smith and Opper decided] the same day in 1954.” Bishop,431 S.W.3d at 51 .
Under such circumstances, the formal corpus delicti rule becomes ineffective, as explained by the Colorado Supreme Court:
“The trustworthiness standard is more effective than the corpus delicti rule . . . : it seeks to detect false confessions by focusing on whether a confession is true or false. The trustworthiness standard also responds to tire criticisms of the corpus delicti rule. It is easier to apply to complex or inchoate crimes because the corpus delicti does not have to be defined, and it is less likely to work injustice in cases where no evidence of the corpus delicti exists. [Citations omitted.] Finally, the trustworthiness standard is not duplicative of Miranda and similar constitutional safeguards because it protects defendants from false confessions, not involuntary ones.” LaRosa,293 P.3d at 577 .
The Supreme Court of Utah succinctly summarized the pure trustworthiness standard as it is applied in numerous jurisdictions:
“Under the trustworthiness standard, the State must still establish ‘[a]ll elements of the offense.’ [Citation omitted.] However, the elements may be established by independent evidence of the crime, a corroborated confession, or a combination of both. [Citation omitted.] Thus, the State does not have to provide independent evidence that a harm or injury occurred by criminal act before a confession may be admitted to help establish guilt.
“Before it can introduce a defendant’s confession, however, the State must ‘introduce substantial independent evidence which would tend to establish the trustworthiness of the [confession].’ [Citation omitted.] Stated differently, the independent evidence must strengthen and add weight or credibility to the confession [citations omitted] so as ‘to produce a confidence in the truth of the confession’ [citation omitted]. Hence, the precept still stands that ‘no defendant can be convicted [solely] on the basis of an uncorroborated out-of-court [confession].’ [Citation omitted.]” Mauchley,67 P.3d at 488 .
Applying this standard,
“the prosecution is not required to present evidence other than a defendant’s confession to establish the corpus delicti. Rather, the prosecution must present evidence that proves the trustworthiness or reliability of a confession. [Citation omitted.] The evidence is sufficient if the corroborating evidence supports the essential facts admitted sufficiently to justify a juiy inference of their truth. [Citation omitted.] ‘[T]he corroborating facts may be of any sort whatever, provided only that they tend to produce a confidence in the truth of the confession.’ [Citation omitted.]
“To determine whether corroborating evidence proves the trustworthiness or reliability of a confession, . . . the trial court must find that corroboration exists from one or more of the following evidentiary sources: facts that corroborate facts contained in the confession; facts that establish the crime which corroborate facts contained in the confession; or facts under which the confession was made that show that the confession is trustworthy or reliable.” LaRosa,293 P.3d at 577-78 .
The most straightforward way to understand and synthesize the confusing array of divergent facts, crimes, and methods of analyzing the rule that exist in our state’s long history with corpus delicti jurisprudence is to recognize — which I would do explicitly — -that long before the United States Supreme Court’s pronouncements in Smith and Opper, the Kansas Supreme Court articulated the need for some form of a trustworthiness
Conclusion
In light of this histoiy, and based on the facts of this case, I would explicitly articulate and clarify a version of the trustworthiness standard which already exists in our Supreme Court’s holdings in Cardwell, Bell, and Waddell and which is buttressed by its adoption of Smith and Opper as authoritative in Kansas. Such a rule would require that in cases where the harm or injuiy is inchoate and not easily susceptible to physical proof, there must be independent corroboration establishing the trustworthiness of any extrajudicial confession or admission. There is no prescribed form such independent corroboration must take, however, it must be sufficient to enable a reasonable fact-finder to infer the corpus delicti of the alleged offense from the trustworthy confession.
In the current case we have a clear example of a crime which, by its nature, left behind no physical trace of the harm or injury that is the gravamen of the offense. Kansas courts must remain mindful of the wisdom of the Cardwell court that the law will only require such proof of the corpus delicti that is reasonably attainable given the nature of the offense. The majority opinion clearly describes the independent corroboration of McGill’s confessions. Such corroboration renders those confessions sufficiently reliable to permit a reasonable fact-finder to draw an inference of the corpus delicti — even in the complete absence of any independent evidence of the harm or the means of its infliction.
[[Image here]]
Dissenting Opinion
dissenting: The majority misconstrues and then misapplies the modified corpus delicti rule as it has developed in the common law of Kansas to affirm the convictions of Defendant Joseph T. McGill for sexually molesting his infant daughters. As abhorrent as the charged crimes may be, the rule correctly considered requires that the convictions be reversed and the complaint against McGill be dismissed beсause the only evidence against him comes from his own uncorroborated admissions. Rather than accept that outcome, the majority shades the rule in a manner at odds with its basic purpose and finds corroboration of the crimes where there is none. I am constrained to respectfully dissent from the result.
Although the utility of the corpus delicti rule has been and may be fairly debated, that debate does not figure in the resolution of McGill’s case. The Kansas Supreme Court has recognized a limited form of the rule outlined in a series of decisions the United States Supreme Court issued 60 years ago. See State v. Berberich,
I. Historical Perspective on Corpus Delicti Rule
Some historical perspective on the corpus delicti rule facilitates a full understanding and analysis of this case. By legal lore, die rule traces back to a 17th centuiy English case in which three persons were executed for murder based on a sweeping confession from one of them, only to have the putative victim turn up quite alive and well sometime later. See State v. Madorie,
The corpus delicti of an offense entails evidence of an injury or harm and a criminal instrumentality causing the injury. United States v. Chimal,
The quintessential purpose of the corpus delicti rule is to prevent the conviction of a person for a crime that never occurred— using as the only evidence that person’s necessarily false confession or admission. Warszower v. United States,
The rule typically exists as common-law doctrine, a judicially created component of the criminal law. Some states have codified a form of the rule. See, e.g., Minn. Stat. § 634.03 (2012); Or. Rev. Stat. § 136.425 (2013). Kansas has not. From time to time, the United States Supreme Court has considered the corpus delicti rule as part of the federal common law in reviewing criminal prosecutions. The rule, however, has neither a constitutional foundation nor a constitutional mandate. See Corbett,
Both decried as a near useless and sometimes dangerous common-law relic and praised as a necessary shield against wrongful convictions, see McGill, slip op. at 48 n.4, the corpus delicti rule has been modified in many jurisdictions and abandoned in some. See People v. LaRosa,
II. The Rule in Kansas: Borrowing from the United States Supreme Court
In recent times, dating that period somewhаt arbitrarily from court unification in 1977, the Kansas Supreme Court has consistently looked to several United States Supreme Court cases decided in the mid-1950s as guiding authority for the rule’s application here. See Berberich,
The majority misreads Opper (and a paraphrase of Opper in Wong Sun v. United States,
Opper was charged with making an illegal payment or kickback to a government procurement officer for a favorable decision on a product he hoped to sell to the Air Force. During a government investigation, Opper admitted giving the procurement officer money but claimed it was a loan unconnected to the decision on the product. So Opper made admissions concerning facts essential to the crime, particularly the payment, but cast them in a benign light. At trial, the government presented extrinsic evidence verifying the payment and its timing relative to procurement decision, thereby corroborating the exchange and circumstantially demonstrating an illegal quid pro quo. The Court affirmed Opper’s conviction.
To frame its ruling, tire Opper Court outlined the split it perceived in the federal caselaw construing the corpus delicti rule. On the one hand, cases typified by Daeche v. United States,
The Court then explained its preference for the Daeche application of the corpus delicti rule this way:
“[W]e think the better rule to be that the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti. It is necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement. Thus, the independent evidence serves a dual function. It tends to make the admission reliable, thus corroborating it while also establishing independently the other necessary elements of the offense. [Citation omitted.] It is sufficient if the corroborationsupports the essential facts admitted sufficiently to justify a jury inference of their truth. Those facts plus tire other evidence besides the admission must, of course, be sufficient to find guilt beyond a reasonable doubt.” Opper, 348 U.S. at 93 .
The evidence corroborating the confession or statement need not itself support every part of the corpus delicti. But that evidence must establish independently at least some aspect or element of the offense, thereby fulfilling the described “dual function” of bolstering the trustworthiness of the statement and demonstrating that a crime actually had been committed. The Court explained that the independent evidence must support “essential facts” contained in the statement. Both the independent evidence and those essential facts, therefore, have to relate to the principal elements of the crime and, thus, to either the corpus delicti or the identity of the perpetrator. The corroboration of essential facts in the statement then permits a jury to infer the truthfulness or reliability of the remainder of the statement. The corroborated statement combined with the independent corroborating evidence will establish the elements of the offense and will suffice to sustain a conviction.
The Smith decision, not surprisingly, comports with Opper. In that case, Smith was prosecuted for tax evasion based on his substantial underreporting of income. Statements from Smith valuing his net worth were key to the government case. Smith acquired property worth far more than his reported income and disclaimed other financial resources to do so. Characterizing Smith’s statements of his net worth as a “cornerstone” of the prosecution, the Court recognized that admissions of such importance “should not go uncorroborated.”
With Opper and Smith, the Court endorsed a modified version of the classic corpus delicti rule by requiring that evidence extrinsic to the defendant’s statement corroborate or confirm some part of the criminal activity directly or circumstantially. What the Court did not do is create a general test of trustworthiness supplanting corroboration of the criminal activity by some extrinsic evidence. Under that type of test, a confession alone would be sufficient to convict if the circumstances surrounding its making rendered it “trustworthy,” even though no external evidence confirmed in any way that the recited crime occurred. LaRosa,
In sum, Smith and Opper require that evidence corroborating a confession confirm or support factual aspects of the crime described in the confession and not merely other, tangential circumstances the defendant has recounted. Other courts have construed and applied tiróse decisions that way. See United States v. Hilger,
III. The Majority Misapplies the Kansas Rule
Here, the majority falters both by relying on verification of nonessential facts in McGill’s confessions as sufficient corroboration and by applying what seems to be a general trustworthiness test. The majority ultimately cites nothing that corroborates the recited criminal activity either directly or inferentially, as required by the modified corpus delicti rule.
The majority points out that in the confessions, McGill correctly identifies his daughters by name and age. The majority then submits that information satisfies the corroboration requirement of Opper. But the names and specific ages of the victims are not essential facts of the crime or part of the corpus delicti. More to the point here, McGill, as the father of the children, would be expected to know their names and ages. That he did is neither surprising nor relevant in the sense of making the commission of the crime any more or less likely true. Had McGill said in his confession that he watched part of Gone with the Wind on televisiоn the day he molested one of his daughters and it starred Clark Gable and Vivien Leigh, his correct identification of the leads in die movie would do nothing to satisfy the modified corpus delicti rale. Those facts are immaterial to corroborating some aspect of the crime, just as his knowledge of the names and ages of his daughters must be.
The majority similarly and mistakenly imputes legal significance to McGilfs being alone with his children from time to time. A parent typically will spend time with his or her children outside the presence of other adults. So that does nothing to corroborate some essential fact of the crime.
In his statements, McGill said he molested one of his daughters in the shower. The majority then makes much of the testimony of McGill’s wife drat he sometimes showered with the children. The majority declares the behavior “to be quite unusual” and finds it to be circumstantial evidence of the corpus delicti and, dius, corroborative of the confessions. Slip op. at 18. The record evidence doesn’t support those conclusions. Neither side called an expert witness to testify about the occurrence of communal bathing among family members. And I, too, might suppose it to be uncommon, but I have neither a valid frame of reference for that supposition nor any evidence in the record for such a conclusion. Assuming a court might take judicial notice that a parent showering with his or her young children would be statistically rare or could be characterized as distinctly odd behavior (though both assumptions plainly overtax judicial notice), that doesn’t circumstantially support the charged sex offenses or corroborate essential facts of the recited crimes. See Allen,
The majority finds corroboration in McGill’s multiple confessions to persons not directly connected with law enforcement agencies and given in situations without tire often coercive trappings of police interrogation. But courts applying some form of the corpus delicti rule reject the argument that serial confessions corroborate one another in the way independent evidence of the crime does. In United States v. Calderon,
Establishing corroboration through multiple statements that are otherwise unverified by extrinsic evidence of the purported offense undercuts the elemental purpose of the corpus dehcti rule — preventing convictions for crimes that never happened. A person voluntarily admitting to an imagined crime presumably would have little or no compunction about repeating that admission, espeсially when he or she acts upon a mental aberration or for some misguided ulterior purpose. The corpus dehcti rule essentially sets what, in theory, is a bright line by precluding a conviction based on a confession absent independent evidence of the crime. (Just where courts draw that line isn’t nearly so bright, since they taire widely differing and sometimes inexplicable views of what constitutes independent evidence.) Regardless of how trustworthy or reliable a confession may seem, it alone cannot sustain a conviction. The bright line is not dimmed by serial confessions lacking extrinsic evidentiary corroboration.
So the majority effectively sidesteps the corpus delicti rule altogether and relies on the circumstances surrounding the making of McGill’s statements to declare them sufficiently trustworthy to support his convictions without any extrinsic corroborating evidence of the crimes. The majority finds trustworthiness in the very existence of multiple incriminating statements. And the majority considers McGill’s reported demeanor in malting the statements. McGill seemed remarkably ill at ease during the therapy session in which he admitted molesting his
Here, the record is silent on McGill’s explanation, if any, for his statements. That’s not particularly surprising. Under tire modified corpus delicti rule, the absence of corroborating extrinsic evidence of the charged offenses is determinative. McGill need not show the confessions amounted to manifestations of some mental illness or aberration. Expert psychological testimony, disputed or not, would be irrelevant to the sufficiency of the evidence to convict under the Kansas rule, so McGill had no particular incentive to go down that path or to otherwise defuse the statements.
Rather than accept outcomes of the sort required here, at least a few courts have abandoned the corpus delicti rule in favor of a trustworthiness test for uncorroborated confessions. LaRosa,
Some courts and commentators have mistakenly suggested Smith and Opper fashioned a trustworthiness test of the land adopted in Colorado and Utah. See Mauchley,
The corpus delicti rule may result in the release of (or a decision not to prosecute) a person who provides what appears to be a clear, cogent, and full confession to a crime that cannot otherwise be verified. But it also protects someone giving an uncorroborated confession because of psychological instability or for some ulterior motive. The wisdom of that tradeoff takes center stage in the debate about the rule’s worth. The trustworthiness test is no perfect antidote. The test, as outlined in LaRosa and Mauchley, is so amorphous as to be almost formless and, thus, subject to wildly inconsistent, if not arbitrary, application across cases. And it might well spark irreconcilable expert battles over an accused’s mental acuity if the confession were argued to be the product of a compulsion, delusion, or other aberration.
In short, McGill’s confessions were not corroborated with any extrinsic evidence of the crimes or his commission of them. There is no independent evidence the offenses occurred. Under the modified corpus delicti rule applicable in Kansas, those confessions and, thus, the State’s evidence are insufficient to support the charges.
In Smith,
As I have indicated, Judge Stegall’s concurring opinion mischar-acterizes Kansas precedent and the decisions in Smith and Opper to forge a rule that would permit a criminal defendant to be convicted solely on tire basis of his or her confession without any external corroboration of the alleged offense. Judge Stegall effectively says Kansas has already joined Utah and Colorado in rejecting outright any form of the corpus delicti rule in favor of allowing convictions based on uncorroborated confessions that seem “trustworthy” — whatever that means or however that might be measured.
First, Judge Stegall misconstrues the issues and the reasoning in State v. Cardwell,
In Cardwell, the defendant’s several confessions to having raped his minor daughter were corroborated by a sworn, written statement of the victim that she had been sexually assaulted by her father; oral representations
So general language from that case should not be unhitched from the factual circumstances of the decision and cited as authority for a substantially different proposition, especially one the court itself presumed to avoid. See Illinois v. Lidster,
The Bell decision stands for the same legal proposition as Cardwell. In that case, Bell was convicted of statutory rape for having sexual intercourse with a 15-year-old girl while they were on a date. Bell made inculpatory statements and promised to marry the young woman to make amends. They were married several days later, but things did not go well. Six weeks later, the victim provided law enforcement officials with a signed affidavit stating that Bell had had sexual intercourse with her before their marriage and against her will. After Bell was charged, the victim testified to the offense at the preliminary hearing. But during the trial, she recanted the affidavit and that testimony. The jury convicted Bell. The Kansas Supreme Court affirmed, finding Bell’s extrajudicial admissions of the offense to be corroborated by the victim’s statements, the sudden marriage, and the victim’s ripped undergarments her mother found the day after the crime.
In short, neither Cardwell nor Bell does the work Judge Stegall assigns them collectively in his assessment that the modified form of the corpus delicti rule recognized in Kansas really amounts to a latent adoption of the trustworthiness doctrine.
Judge Stegall submits Smith and Opper essentially confirm his assessment. But, as I have explained, those cases modify the strict corpus delicti rule to the extent that some extrinsic evidence of a crime or a defendant’s commission of an act integral to the offense — such as the underreporting of income in a tax prosecution or the payment of money to a government employee in a bribery prosecution — will suffice to corroborate a confession or admission. Those cases do not abrogate the requirement for some extrinsic corroboration of the defendant’s criminality. And they do not permit a criminal conviction using solely a confession deemed trustworthy based on the circumstances under which it was given. The more recent Kansas cases Judge Stegall cites apply Smith and Opper in cases with substantial corroborating evidence; they do not embrace, endorse, or rely on the trustworthiness doctrine outlined in LaRosa or Mauchley.
Finally, Judge Stegall implies that many jurisdictions have adopted “trustworthiness” as the test for the legal sufficiency of a
But corroboration under Smith, Opper, and their modified corpus delicti rule requires extrinsic evidence confirming material factual representations in an accused’s admission, thus conforming to the common understanding of how something may be corroborated. See Black’s Law Dictionary 397 (9th ed. 2009) (corroboration means “confirmation or support by additional evidence or authority”); The American Heritage Dictionary of the English Language 412 (5th ed. 2011) (corroborate defined as “[t]o strengthen or support with other evidence”); see also In re J.D.C.,
IV. Procedural Ramifications of Corpus Delicti Rule
The procedural development of this case in the district court implicates aspects of how and when the corpus delicti rule should be applied that have generated conflicting decisions across jurisdictions. And, in one respect, the Kansas appellate authorities themselves conflict.
With the State’s agreement, the district court took up the matter of McGill’s confessions and their corroboration under the corpus delicti rule on the defense motion to dismiss the complaint, as provided in K.S.A. 22-3208, or in the alternative for an order in limine to exclude the confessions as evidence at trial. At the motion hearing, the prosecution supplemented the record from the preliminary hearing with testimony from additional witnesses. I gather that, for all intents and purposes, the State presented its entire case against McGill. After considering the evidence presented at both hearings, the district court denied the motion to dismiss. McGill was then convicted in a bench trial on stipulated facts.
McGill has not appealed the convictions, and the stipulated evidence submitted at trial is nowhere in the record. Rather, McGill has challenged the denial of his motion to dismiss. On appeal, the parties agree that the denial of the motion continues to present a justiciable controversy notwithstanding McGill’s conviction at trial. I have no reason
With that unusual backdrop, just how the corpus delicti rule actually operates percolates close to the surface. Courts have split on whether the rule governs the admissibility of a confession or the sufficiency of the evidence to convict. Some courts hold that without corroboration, a confession cannot be admitted as evidence. See State v. Fundalewicz,
In the run of cases, either application of the rule at trial theoretically ought to yield the same result when the confession lacks corroboration. Under the admissibility approach, the confession never gets before the jury; and without other evidence, the prosecution should founder either on a motion to acquit or in the jury room. Under the sufficiency approach, the district court ought to grant a motion to acquit at the close of the State’s case or after both sides have rested. (If a district court improvidently submits the case to die jurors and they return a legally unsustainable guilty verdict, then the defendant should prevail on a renewed motion.)
But the approaches do have differing implications for how the issue should be joined in the district court and reviewed on appeal. If the rule is one of admissibility, it could be raised in a motion in limine, the purpose of which is to secure a ruling in advance of trial excluding particular evidence. See State v. Shadden,
In the Opper-Smith-Calderon trilogy, tire Court treats the modified corpus delicti rule as one addressing the sufficiency of the evidence to convict. Calderon,
Because the corpus delicti rule has been fashioned to prevent convictions based on confessions to crimes that cannot be independently established, the sufficiency of the evidence approach better adheres to that purpose. Applied that way, the rule directly addresses the factual support for the State’s case. When that support fails as a matter of law, the rule should require a discharge at preliminary hearing and certainly would requires judgment of acquittal at trial. Treated as a rule of admissibility for an accused’s statements, it furthers that purpose only indirectly.
Here, McGill asserted the corpus delicti rule through a pretrial motion to dismiss rather than at trial. A motion to dismiss may be used to challenge the sufficiency of the State’s evidence produced at a preliminary hearing to bind a defendant over for trial. State v. Washington,
A defendant ought to be bound over for trial at a preliminary hearing if the evidence establishes that the charged crime has been committed and there is probable cause to believe the defendant committed it. See K.S.A. 22-2902(3) (defendant should be bound over at preliminary hearing “[i]f from tire evidence it appears that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant”); Washington,
But courts have split on whether the corpus delicti rule applies at preliminary hearings.
The State also has a right to a preliminary hearing. K.S.A. 22-2902(1) (“The state and every person charged with a felony shall have a right to a preliminary examination . . . .”). By invoking that right, the State may secure a judicial assessment of the adequacy of its evidence before trial. Where, as here, the legal sufficiency of tire evidence might be fairly debated, that is a distinct benefit. Jeopardy does not attach when the State fails to bind a defendant over at a preliminary hearing or when the defendant prevails on a motion to dismiss. Sо the defendant may be charged again. See State v. Roberts,
I suppose all of that would be true here. If we were disposed to reverse and, thus, to direct that the motion to dismiss be granted and the State were later to develop evidence genuinely corroborating the confessions, McGill could then be charged. Had McGill appealed from the convictions themselves, arguing the insufficiency of the trial evidence, a judgment of acquittal presumably would be the appropriate remedy. See State v. Scott,
All of those procedural ramifications aside, the State presented its best case against McGill in responding to the motion to dismiss, and his confessions remained uncorroborated. Accordingly, under the modified corpus delicti rule applicable in Kansas, the district court should have discharged him.
Notes
For purposes of this case and the corpus delicti rule as applied in Kansas, I draw no particular distinction between confessions and admissions. A confession entails a statement of facts that, if true, directly supports criminal liability and often includes an acknowl-edgement of guilt. Opper,
The Court recognized a subgroup of cases within the Daeche formulation of the rule in which the corroborating evidence circumstantially established aspects of the corpus delicti rather than directly doing so. Opper,
As described in Suriner, the Idaho courts had already modified the corpus delicti rule so that the corroboration requirement could be satisfied based on the circumstances surrounding the making of a defendant’s confession, including repetition of the in-culpatory statement.
Neither the corpus delicti rule nor the trustworthiness test works magic. Bódi can and will result in injustice in some cases and foster justice in others. Professor David A. Moran and Phoenix Assistant City Attorney B. Donald Taylor, III, provide a spirited point-counterpoint debate of the two approaches in their respective articles using factually similar cases from Michigan and Arizona as the springboards for their arguments. Moran, 64 Ohio St. L.J. 817; Taylor, Evidence Beyond The Confession: Abolish Arizona’s Corpus Delicti Rule, 41 Ariz. Att’y 22 (May 2005). The cases involved homicide prosecutions in which mothers confessed to killing their children when the deaths had originally been attributed to sudden infant death syndrome and, therefore, classified as accidental. Infant deaths without obvious physical causes appear to be a repeat corpus delicti battleground. See State v. Nieves,
In State v. Grissom,
Given the purpose of a motion to dismiss in testing the State’s evidence produced at preliminary hearing, the district court should have decided the challenge based only on that evidence. At the hearing on the motion to dismiss, the State could not have supplemented the preliminary hearing record with additional evidence. But given the confusion in the Kansas appellate authority and Mc-Gill’s request for a motion in limine precluding admission of the confessions at trial, the district court would have had to receive the balance of tire State’s evidence to fairly consider that alternative relief.