A little known fact about cases involving police interrogations that result in “confessions” is that the confession alone is not enough to sustain a conviction. In addition to the confession, the prosecution must introduce some sort of corroboration of the crime. One reason for this corroboration requirement is that our courts and interrogation experts recognize that people falsely confess to crimes. The most common reason for a false confession is that the police overbore the suspect’s will and the suspect was therefore willing to say anything to make the interrogation stop. Think in terms of a heroin user held in a cell for hours and confronted with the choice of being sent to jail and dealing with the pains of withdrawal, or “confessing” and being allowed to go home where they will be able to avoid days of excruciating pain. A less common reason for a false confession is that someone took responsibility for a high profile crime to get attention and their fifteen minutes of fame. Regardless of the reason for a false confession, the idea is that it is miscarriage of justice when a false confession leads to the imprisonment of an innocent person and/or allows the actual perpetrator to go free.
What remains unclear is precisely what kind of corroboration is required under New Jersey law. In fact, it is not even clear that any kind of tangible corroboration is still required, even though the requirement has been recognized since the 1800s. In an unpublished opinion, meaning that the opinion is persuasive but not binding on other courts, our Appellate Division held in the 2011 case of State v. Randy Jackson that:
Defendant urges additionally that the jury should have been instructed on the need to find corroboration of defendant’s confession, and that such an instruction, although not requested, was not given sua sponte . . . In State v. Lucas, 30 N.J. 37 (1959), the Supreme Court discussed the requirement of corroboration, noting: “[t]he rule in New Jersey that a confession without more cannot sustain a conviction can be traced back through the decisional law to as early as 1818.” Id. at 51 (citing State v. Aaron, 4 N.J.L. 231 (Sup.Ct.1818)).
In determining what the New Jersey corroboration rule required, the Court first observed that there are three basic elements in the proof of any crime: [1] that loss or injury, such as death, in a murder prosecution, has occurred; [2] that the injury or death occurred as the result of criminal conduct, not accident; [3] and that defendant was the perpetrator of the crime. Id. at 53. After discussing whether the State must produce independent proof of the first and second elements, or merely the first, the Court held that “the State must introduce independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness, plus independent proof of loss or injury.” Id. at 56.
To make sense of the first two “required” elements for corroboration, it helps to imagine an actual criminal scenario. Here, a murder with a knife makes for the most straightforward example. With regard to the first element, the police seeing the victim’s injuries or dead body with their own eyes would suffice.
Regarding the second element, this would generally require the expert testimony of a medical examiner with the specialized knowledge to determine if the fatal injury was consistent with criminal conduct (like a stabbing by someone other than the decedent) or a non-criminal accident (in which the decedent slipped while holding a knife and stabbed himself).
The corroboration requirements become hazy when dealing with victimless crimes and crimes involving non-tangible “injuries.” For example with regard to the first element, the argument can be made that the offense of possessing heroin can not be proven in court, despite a confession, if the suspected heroin is never tested at a laboratory to confirm that it is in fact heroin and not an imitation substance.
Still, binding New Jersey case law suggests that there are no precise elements required in order to corroborate a confession. In State v. Di Frisco, 118 N.J. 253 (1990), the New Jersey Supreme Court held that:
“[a]s with any other part of a prosecutor’s case, a confession may be shown to be ‘insufficiently corroborated or otherwise deemed unworthy of belief.’ ” Id. at 274 (quoting Lego v. Twomey, 404 U.S. 477, 486, 92 S.Ct. 619, 625, 30 L. Ed.2d 618, 626 (1972)). Thus, “[i]n the ordinary jury trial, a defendant would be entitled to request and receive a charge to the jury on its duty with respect to issues of corroboration.” Ibid.
In light of the Difrisco holding, the prosecution might argue that there no longer exists a specific “corroboration requirement,” but only the general requirement that the jury be instructed that the state must prove beyond a reasonable doubt that the confession is believable. From the defense perspective, the problem with not instructing the jury on exactly what suffices for proof of corroboration allows the state too much leeway and invites jurors to convict based on gut feelings, as opposed to tangible evidence. In any event, the issue is but one of many open ones in New Jersey. Like all novel issues, a defendant’s chances at prevailing depend in large part on their choice of attorney. The odds are stacked in the in favor when they choose a defense attorney that specializes in criminal trial and appellate work.
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