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Tim Bilecki


United States v. Burghardt, No. Misc. 2009-13 (A.F. Ct. Crim. App. Mar. 5, 2010) (unpublished) deals with corroboration. At an interview with AFOSI, the appellee admitted in writing and orally to removing the victim’s clothing while she was passed out, performing oral sex on her while she was passed out, and engaging in sexual intercourse with her. At trial, the defense counsel filed two motions to suppress the appellee’s statements. The first motion was that the statement was involuntary and that admission of the statements in light of the destruction of the videotape of the interview would violate the appellee’s due process rights. The second motion was to suppress the statements for lack of corroboration.

The military judge granted the motions. The military judge found that the admission that the appellee performed oral sex on the victim was uncorroborated, but that the statement was voluntary. Even though the statement was voluntary, the admission of the statement, in light of the destruction of the videotape (even though it was not destroyed in bad faith), would place the appellee at an unfair disadvantage. The military judge also found that the need to suppress the statement was “amplified by the lack of corroboration of the statement.”

The issue before the AFCCA was whether the military judge erred by suppressing the appellee’s statement for lack of corroboration?

The court held that the military judge erred by suppressing the statement. The AFCCA cited to Mil. R. Evid. 304(g) for the proposition that, “[t]he independent evidence necessary to establish corroboration need not be sufficient of itself to establish beyond a reasonable doubt the truth of the facts stated in the admission of confession . . . . [it] need raise only an inference of the truth of the essential facts admitted.” (emphasis added). In this case, the AFCCA found that the judge abused his discretion because there was ample evidence in the record to support the appellee’s admissions:

  1. the victim’s Article 32 testimony placed them in her room alone after a night of drinking;
  2. the victim’s testimony that she fell asleep or passed out with her clothes on and later woke up with them off corroborates appellee’s admission to removing them; and,
  3. the victim’s testimony that she awoke to the appellee having sex with her corroborates the timeline of the appellee’s admissions, including that he performed oral sex before having sex with her.

Additionally, the AFOSI agent testified that the appellee raised the issue of oral sex without any prompting. As for the destruction of the videotape of the interview, the AFCCA found that there was no evidence that it was exculpatory or that it was destroyed in bad faith. It was not a necessary piece of evidence for corroboration. The military judge erred by suppressing the statement.

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