From: Greg Broiles <gbroiles@netbox.com>
Date: Sat, 28 Sep 1996 18:11:59 +0800
To: "Timothy C. May" <tcmay@got.net>
Subject: Re: "Confessing to a felony"
Message-ID: <3.0b19.32.19960928013142.0069aa3c@ricochet.net>
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At 06:30 PM 9/27/96 -0800, Tim May wrote:
>
>Hearing me say I "exported crypto," a hearsay claim, and happening to find
>one or more laptops at my home, weeks or months later, implies nothing.
>Legal proof is still needed. Given only a nebulous statement like "I
>exported crypto in violation of the ITARs," or "I shipped PGP to Europe,"
>is not enough for a case even to be brought to trial.
>
>(If it reached trial, I would expect a defense attorney to move for
>dismissal. Absent any evidence that a crime occurred, absent any proof
>beyond the nebulous hearsay statement of a "braggart," there is simply no
>basis for criminal action.)
>
>"Stupid bragging criminals" may be common, but bragging is not in and of
>itself illegal. There still has to be evidence of a crime.
>
>"Produce the body."

I mostly agree re the "corpus delicti" rule (a confession must be
corroborated by independent evidence that a crime has been committed,
common law federally, statutory in Oregon (ORS 136.425(1)) but disagree
with your use of "hearsay" - statements of a defendant in a criminal
proceeding are not hearsay because they're the statements of a party
opponent. (In federal court and in Oregon, anyway - in California they're
hearsay but admissible as an exception. FRE 801(d)(2), ORE 801(4)(b), Cal
Evid Code 1220.)  

This quote from _US v. Singleterry_ (CA1, 1994) (sorry no F2 cite, found it
on a net database of slip opinions) does a nice job of addressing the
question at hand:

"To begin with, we note that a defendant's own statements are never
considered to be hearsay when offered by the government; they are treated
as admissions, competent as evidence of guilt without any special guarantee
of their trustworthiness. See Fed. R. Evid. 801(d)(2) & advisory
committee's note; see also United States v. Barletta, 652 F.2d 218, 219
(1st Cir. 1981). Nevertheless, there is a danger that the jury will rush to
credit a confession without seriously considering whether the defendant
confessed to a crime he did not commit. As a result, the federal courts
have adopted common law rules designed to prevent a jury from convicting
the defendant solely on the basis of an untrustworthy confession. The
general rule is that a jury cannot rely on an extrajudicial, post-offense
confession, even when voluntary, in the absence of "substantial independent
evidence which would tend to establish the trustworthiness of [the]
statement." Opper v. United States, 348 U.S. 84, 93 (1954). See also Smith
v. United States, 348
U.S. 147 (1954); Warszower v. United States, 312 U.S. 342 (1941); United
States v. O'Connell, 703 F.2d 645 (1st Cir. 1983). The Court has explained
that independent proof of the commission of the charged offense is not the
only means of establishing the trustworthiness of the defendant's
confession; another "available mode of corroboration is for the independent
evidence to bolster the confession itself and thereby prove the offense
`through' the statements of the accused." Smith, 348 U.S. at 156."
(footnotes omitted)

I think the question of what *would* constitute the corpus delicti is
interesting; the mere presence of PGP overseas shouldn't be enough. And
evidence like PGP's presence on a laptop which had once been overseas, or
airline ticket stubs or passport stamps or testimony from a security
officer who remembered making the defendant turn on the laptop at the metal
detector, or even surveillance camera footage would corroborate the
defendant's confession but not establish that a crime was committed. Such
evidence would seem to get us closer to the latter test mentioned in
_Singleterry_ but wouldn't meet Oregon's test of "some other proof that the
crime has been committed" (ORS 136.425) nor California's "the charged crime
actually happened" (People v. Jennings (1991) 53 Cal.3d 334, 368) standard.
But an ITAR prosecution would occur in Federal court, where evidence which
merely corroborates the confession (instead of proving a crime) may be
sufficient. 

(And, of course, this is all just so much jawboning. Not legal advice.
I'm inclined to avoid confessing to crimes via the Internet whether or not
it seems likely to lead to prosecution or conviction. I've already been to
one job interview where the employer had seen (and was unnerved) by my
vocal presence on the net.(!?!) Which is OK with me because if I make
someone nervous when they read Alta Vista, just wait until they meet me. :)
It's time to get used to the idea that whatever we write may come back in
20 or 30 or 40 years, whether we like it or not. I think it'll teach us
both a sense of forgiveness and a sense of discretion, but that may take
awhile.) 


--
Greg Broiles                |  "We pretend to be their friends,
gbroiles@netbox.com         |   but they fuck with our heads."
http://www.io.com/~gbroiles |
                            |