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Tim Bilecki

Suppressing the Appellee’s Statement for Lack of Corroboration

In United States v. Coons, No. 200900366 (N-M. Ct. Crim. App. Dec. 22, 2009) (unpublished), the issue was whether the military judge erred by suppressing the appellee’s statement for lack of corroboration.

During an interview with NCIS, the appellee told investigators that he began abusing his then seven-year-old daughter around December 1999. He specifically admitted to five incidents of abuse that took place in their living room. He would position the two couches together to create a bed of sorts, would lie there with his stepdaughter and sexually assault her, while his stepson played on the floor. The stepson testified at trial that the appellee would push the couches together and he would play on the floor while his sister would be on the couches with the appellee. Appellee’s wife also testified that when confronted with a poem written by the stepdaughter, appellee began crying. At trial, the stepdaughter denied anything more than open mouth kissing with appellee. The defense filed a motion to suppress these statements for lack of corroboration. The military judge granted the motion to suppress.

The NMCCA held that the military judge erred. The NMCCA started by citing to Mil. R. Evid. 304(g) for the proposition that, “[c]orroboration of the essential facts must be established by independent evidence, direct or circumstantial, sufficient to justify an inference of their truth.” The court held that the “amount of corroboration needed is ‘very slight’ or ‘slight.'” See United

States v. Cotrill, 45 M.J. 485, 489 (C.A.A.F. 1997). In this case, the court found that the military judge applied an “overly restrictive interpretation of the corroboration rule.” The NMCCA noted that the stepson confirmed multiple portions of the appellee’s statement, including: 1) the fact that the appellee would rearrange the couches to create a bed; 2) the fact that he would sit on the floor while the appellee and his sister were on the couch together; and, 3) the location of the appellee’s wife was not mentioned, which provided access and opportunity to commit the assaults. The court noted that the stepdaughter confirmed open mouth kissing, which provides demonstrable evidence of grooming. Additionally, the wife confirmed that she engaged in extra-marital affairs during this period, which provided a possible motive. All of these facts provide corroboration for the appellee’s statements. The military judge erred by suppressing the statement.

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