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Uncorroborated Confessions – When Saying I Did It Is Not Enough

By Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.


In Grimm vs. State, the Court of Appeals (COA) reversed a sexual assault conviction finding that Grimm’s admission to having engaged in sexual activity with her minor stepson was not independently corroborated. The COA further held that the trial court’s disbelief of the stepson’s testimony that he could not remember whether or not the sexual activity occurred did not constitute substantive evidence that could be relied upon as corroboration of Grimm’s admission

In Grimm, a letter had been discovered at the stepson’s school that initiated a police investigation that eventually produced evidence that Grimm had engaged in sexual intercourse with her stepson while he was a minor.

During the investigation, Grimm was interviewed and gave an audio and video recorded statement in which she admitted she had a sexual relationship with her stepson that began shortly after he moved in and when he was 16 years of age. She told investigators that the relationship ended a couple of months prior to the police interview. Grimm further told investigators that she suspected that her stepson was the father of at least one of the children. She further acknowledged that she engaged in Facebook conversations with her stepson using an alias name.

The State secured an immunity order from the court and the stepson was compelled to testify as a State’s witness in the State’s case-in-chief. During his direct examination the stepson answered a few preliminary questions but when asked whether he had ever had a sexual relationship with his step mother, he responded that he did not recall any such details or events. When examined by the State during direct examination, the stepson was specifically asked “Have you ever had sexual intercourse with Angela Grimm?” to which he responded repeatedly “No. I don’t remember.” He did acknowledge that he had engaged in the Facebook postings with Grimm, in which she used the name Faith.

In her confession, Grimm said that she had sexual intercourse with her step son 5-10 times beginning when he was 16 years of age. When Grimm was shown 14 pages of Facebook communications between her stepson and herself (using the name Faith Evans) she admitted that Faith Evans was her Facebook alias and said that Faith Evans was the name “we were going to name Logan if [the infant] was a girl so we made it up.”

There was no paternity test conducted to determine whether, in fact, the stepson was the father of one of the children.

The trial court rejected Grimm’s motion for judgment of acquittal during which she argued that there had never been an admission or concession by the stepson that would serve as sufficient corroboration “for the body of the crime.” The State argued that because the stepson’s testimony proved beyond a reasonable doubt that two of the three elements of a crime of sexual abuse of a minor were met, that is that Grimm was a household member and that her stepson was 16 at the time the sexual relationship began, that was sufficient corroboration in that “all we have to do is to show opportunity and we showed two elements.”

Grimm was ultimately convicted of two of three counts of sexual abuse of a minor. The Court of Special Appeals (CSA) affirmed the conviction. Relying upon Larocca vs. State, 164 Md. App. 460 (2005), the CSA concluded that the stepson’s “preposterous” testimony was sufficient to corroborate Grimm’s confession.

The COA identified the two issues before it as follows:

(1) Was Grimm’s admission to having engaged in sexual intercourse with her minor stepson sufficiently corroborated and,

(2) What are the permissible inferences a factfinder may deduce based upon the testimony from a nonparty witness in the event that the factfinder disbelieves the witness’s testimony.

The COA reminded that as a matter of substantive law, a criminal conviction cannot rest solely upon an uncorroborated confession. It noted that it has consistently held that an extrajudicial confession must be supported by evidence, independent of the confession, which relates to and tends to establish the corpus delicti, i.e., the facts that are necessary to show the crime has been committed. The independent evidence need not be full and positive proof of the corpus delicti and may be small in amount, if such proof, when considered with the confession, convinces the jury beyond a reasonable doubt of the guilt of the accused. The corpus delicti may be proved by circumstantial evidence when direct evidence is not available.

The corpus delicti of the crime in Grimm was sexual abuse. The COA noted that the stepson testified that he did not remember details relating to the corpus delicti, the sexual abuse. In other words, he did not affirmatively testify that sexual abuse as defined by the statute had occurred. Grimm asserted that the State did not impeach the stepson with any prior inconsistent statement that he made to the detectives, the State did not present other corroborating documentation, such as medical or physical evidence to support its contention that Grimm sexually abused the alleged victim and, therefore, because the State produced no evidence that an act involving sexual molestation or exploitation of a minor occurred, other than the admission of Grimm, it failed in its obligation to provide corroboration through independent evidence of the corpus delicti of the crime of sexual abuse of a minor.

Grimm pointed out that even if the trial court had found it incredulous that the stepson could not remember the alleged acts, it did not logically follow that the appropriate conclusion for the trial court to reach was that the act of sexual intercourse necessarily occurred. Grimm argued that if a factfinder does not believe the testimony of a nonparty witness, then it must discredit that witness’s testimony because as a matter of law no other inference or speculation is permitted.

The State argued that because the stepson’s testimony was so preposterous that it corroborated the confession. It asserted that there was no danger of Grimm being convicted of a crime that did not occur inasmuch as the stepson’s testimony was so obviously false and so devoid of logic or credibility that it served to fortify the credibility of Grimm’s confession with regard to the corpus delicti of sexual abuse of a minor.

The COA rejected the State’s position holding that there was insufficient evidence on the record for the case to have been submitted to the jury. Although the COA agreed with the State that there was independent evidence offered by the State to corroborate the confession of the stepson’s testimony as to two of the three elements of the crime of sexual abuse of a minor, that is that Grimm was a household member and that the stepson at all relevant times was a minor. The State failed to present evidence independent of a confession, that related to and tended to establish the corpus delicti, facts necessary to show that the crime of sexual abuse of a minor had occurred. The COA held that this failure was fatal to the State’s case in that there was the absence of any other independent, circumstantial or direct evidence corroborating the “essential” harm to the stepson: the sexual abuse.

The COA then turned to deciding what inferences, if any, a factfinder may draw from the disbelief of the testimony of a nonparty witness. The COA noted that it has long recognized the general rule that if a trier of fact disbelieves part or all of a witness’s testimony, that discredited testimony is assigned no weight and plays no role in the consideration of the ultimate issue. In other words, disbelief is not evidence in and of itself and therefore the trier or fact cannot find scienter, i.e. guilty knowledge based solely on a defendant’s denial of such knowledge. Those parts of the disbelieved testimony must be discredited by the factfinder. The COA pointed out that Maryland, like many other jurisdictions, recognizes the doctrine that disbelief of testimony may not alone support a finding in civil and criminal litigation. The COA further noted that there is a narrow exception to this general rule but in such circumstances it requires that a permissible inference be drawn from other admissible evidence, and not just solely from the disbelief of the witness’s testimony. In appropriate circumstances a permissible inference may be drawn where the judgement of falsity reasonably derives not from demeanor, but from the testimonial content or other record evidence. To this extent, the doctrine that disbelief of testimony can never alone support a finding of fact should be qualified. In Maryland, this has been referred to as the scienter exception and, under certain circumstances, may be used by a factfinder when a party witness’s testimony is disbelieved. Application of the scienter exception is limited and permits a factfinder to infer scienter from other sources of evidence but only when a party witness’s testimony is inherently improbable. The exception is applicable only when the following conditions are present: (1) a party witness, i.e. usually a defendant or co-defendant, (2) the denial of scienter by the party witness, and (3) other additional evidence from which the factfinder may rationally deduce that the party witness had scienter. In order to find a defendant’s story so inherently improbable as to justify finding scienter from a defendant’s denial, there must be some additional circumstance establishing the inherent improbability of the defendant’s denial.

The COA rejected the State’s attempt to expand the exception to apply to cases involving a testifying “non-neutral” nonparty witness stating that “[i]t is well settled that the jury’s disbelief of a nonparty witness does not permit the jury to find that the opposite of what the witness testified to is true.”

Applying the rule to the Grimm case, the COA noted that the scienter exception did not apply because the facts of Grimm did not satisfy the requirements of the exception. First, the testimony was that of a nonparty witness rather than that of a party witness. Second, Grimm did not deny scienter, she confessed to having sexual intercourse with her stepson 5-10 times. Third, other than the extrajudicial confession, no additional evidence was presented to allow the jury to permissibly infer that sexual acts occurred between Grimm and her stepson. The State failed to produce any evidence to corroborate the crime. If the jury disbelieved the alleged victim’s testimony, the factfinder was obligated to discredit the part disbelieved.

Judge Watts dissented noting that she would have held that under the specific circumstances in Grimm, that the stepson’s extraordinary lack of credibility was sufficient to serve as corroboration of the Defendant’s confession.



Lemons v. State, 49 Md. App. 467, 433 A.2d 1179 (1981)

It is well established in this State and the vast majority of jurisdictions elsewhere that a defendant’s extrajudicial confession standing alone is, as a matter of law, insufficient to support a criminal conviction. To warrant a conviction, such a confession must be accompanied or as the rule is typically phrased, “corroborated” by some independent evidence. The reason beneath this long-standing rule is that such a requirement is necessary to “protect the administration of the criminal laws against errors based upon untrue confessions alone.” More particularly “[t]he thrust of the principle is to prevent mentally unstable persons from confessing to, and being convicted of, crimes that never occurred.” The CSA pointed out that this concern is real and not frivolous is attested to by psychology and history alike. Hence, the so-called “corroboration rule” does not rest on idle musings about theorized possibilities but is founded upon sound principle grounded on fact.

Given that a confession must be accompanied by other evidence, the CSA in Lemons then advised as to what is demanded of that other evidence both in terms of quality and quantity of such evidence.

“In terms of quality, it is first of all clear, by the very statement of the rule, that this required additional evidence must be, in some sense “corroborative.” As to what is intended by the word “corroborative,” in this context, two views have been expressed. The view adhered to by a minority of jurisdictions is that any evidence that tends to fortify the truth of the confession is “corroborative.” On the other hand, according to the overwhelming majority of authority, to be “corroborative,” in the sense intended by the rule, the evidence apart from the confession must fortify the truth of the confession in a particular way; i. e., it must relate to the corpus delicti.”

The Maryland COA has adopted what is now referred to as the majority view.

Lemons noted that in Maryland, as in the majority of other jurisdictions, evidence is only “corroborative,” in the sense intended by the corroboration rule, if it touches or concerns the corpus delicti and in that way fortifies the truth of the accompanying confession. Evidence that may fortify the confession without relation to the corpus delicti will not be deemed “corroborative.”

Further, in addition to being “corroborative,” in the sense of evidencing the corpus delicti to some extent, the evidence that is required to accompany an accused’s confession must also be “independent” of that confession or, stated otherwise, one portion of a confession cannot be used to corroborate another portion, even if the portion proposed for such use does tend to establish the corpus delicti. A confession simply cannot fortify its own truth. Likewise, multiple confessions of a given accused cannot be viewed as corroborative of one another, for the same danger of untruth that is present in one is present in all.

Given that an extrajudicial confession must be corroborated by independent evidence of the corpus delicti, the CSA asked what remains to be determined is in what quantity the independent evidence will have to be adduced to sustain a conviction. It answered the question instructing that “it is not necessary that the evidence independent of the confession be full and complete or that it establish the truth of the corpus delicti either beyond a reasonable doubt or by a preponderance of proof.” However, ultimately, the necessary quantum of independent proof of corpus delicti is dependent upon the facts of the particular case, and such evidence is said to be, “sufficient if, when considered in connection with the confession, it satisfies the jury beyond a reasonable doubt that the offense was committed and that the defendant committed it.

Specifically in Lemons the CSA held that there was an absence of corroborative evidence where the alleged homicide victim had gone missing and while her failure to return to work “may be consistent with the State’s position that she is dead, this evidence, even by the ‘slight evidence’ test falls short of meeting the requirement of the corroboration rule.” It further observed that this was the type of case that “goes to the very core of the corroboration rule and the interests that the rule is designed to protect.” Lemons was a mentally unstable individual with a history of drug and alcohol abuse and while he confessed to the crime of murder, the only independent and legally corroborative evidence of that fact was that the alleged victim failed to return to work one day, a fact that even her employer found unsurprising.

Bradbury v. State, 233 Md. 421, 425, 197 A.2d 126, 128 (1964)

In Bradbury, the COA addressed the question as to what quantum of evidence will suffice to be corroborative stating that “[i]t is clear, therefore, that the independent evidence necessary to support the confession need not be ‘full and positive’ proof of the corpus delicti and may be small in amount, if such proof, when considered with the confession, convinces the jury beyond a reasonable doubt of the guilt of the accused.” The COA noted that while the trial court in Bradbury should have advised the jury that the supporting evidence, independent of the confession, should relate to and establish the corpus delicti, it did not commit prejudicial error by stating that only ‘slight evidence of corroboration’ was necessary, since, under the circumstances of this child sexual abuse case, there was some proof of penetration and only slight evidence of that fact was sufficient to support the charge of sodomy irrespective of whether the accused confessed or admitted the charge.

Duncan v. State, 64 Md. App. 45, 54, 494 A.2d 235, 239 (1985)

In Duncan the State argued that the child’s extrajudicial accusatory statement, put into evidence through the testimony of the child’s mother, together with Duncan’s confession of guilt to the police fully established the corpus delicti. The CSA rejected that argument noting that, in the mother’s testimony as to her son’s statement, admissible only in conjunction with Duncan’s response thereto as an implied admission, was not substantive evidence of the fact asserted by the child. It was Duncan’s response to that statement-the tacit admission of its truth-that is the admission of guilt.

The CSA said that in order to constitute “corroboration,” evidence relating to the corpus delicti must also be independent of the confession. One part of a confession simply cannot be used to corroborate another part, even with respect to the corpus delicti ; a confession “cannot fortify its own truth” and multiple confessions by an accused cannot corroborate each other. In Duncan there was nothing outside the confession to the police and such admission of guilt as may be inferred by Duncan’s conduct in response to the child’s accusation that could in any way be described as independent evidence relating to or tending to establish the existence of the corpus delicti. No matter how convinced the trier of fact may be of the truth of Duncan’s confession, the lack of independent corroborative evidence that the crimes to which Duncan confessed actually occurred mandates the CSA to reverse his convictions.

Over 45 years of trial experience as a federal and state prosecutor and as a criminal defense attorney