NMCCA ENFORCES OLD CORROBORATION RULE IN SEXUAL ASSAULT CASE
July 25, 2016
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 newest rules.
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