Earlier this year, significant changes were made to the Manual for Courts-Martial.
One of the most notable of those changes was the relaxation of corroboration
requirements for the admission of evidence against a defendant. Recently,
the government appealed a judge's decision to omit key defendant admissions
due to an apparent lack of corroborating evidence. Due to the older corroboration
rules that were active at the time this case was first entered, United
States Navy-Marine Corps Court of Criminal Appeals (CCA) rejected that
appeal earlier this month.
As CAAFlog reports, Airman Richard Latour stood accused of four specifications
of sexual assault—two of which involved the alleged penetration
of the victim while she was unable to give consent due to intoxication.
Latour admitted to the sexual activity but claimed it was consensual.
Prosecutors wanted those admissions submitted to the court-martial, but
defense counsel asserted that there was not enough corroborating evidence
to allow for those admissions.
There was the alleged victim's testimony and a single text message
from the accused to the victim that made a sexual reference. Military
investigators found no physical evidence of intercourse that occurred,
including on the accuser's body. Citing this lack of corroboration,
the military judge blocked Latour's admissions from the trial. Prosecutors
appealed this decision.
The Government's Argument
Prosecutors put forth a three-pronged argument against the omission of
Latour's admissions to the CCA. First of all, they argued that corroboration
requirement was waived by the defense when they failed to object to the
initial entering pleas. However, the CCA blames the government for its
lack of timeliness with this particular issue, writing that government
should have raised this issue with the initial judge. "Had the Government
demanded the MJ (military judge) articulate the good cause found for considering
the appellee’s tardy objections, there would be a clearer, more
detailed record to review," the
CCA slip opinion notes.
Secondly, prosecutors asserted that the text message in question should
not require corroboration because it occurred "outside an interrogation
context." However, CCA writes "We find no legal basis for ignoring
the plain language of MIL. R. EVID. 304 in favor of a discriminatory application
of its corroboration requirement. Thus we find no error in this MJ’s
decision to apply MIL. R. EVID. 304(c)(1) to the appellee’s texted
admission to [the alleged victim] and require corroboration."
And finally, prosecutors asserted that the military judge required too
much corroboration, even under the older corroboration rules. However,
the CCA disagreed, finding that the military judge adequately considered
the apparent lack of corroborating evidence noting that alleged victim
waking up naked and her witnessing the accused leave her room were the
"only somewhat corroborating evidence as to anything taking place."
The CCA's finding will likely lead to a finding of not guilty on the
two sexual assault specifications. This case is a reminder that, even
when laws are changed, the wheels of justice can be slow and cases that
originate from a time prior to any amendments may not be subject to the
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