Thursday, July 26, 2012
Ind. Decisions - Is it time to consider whether we should require corroborating evidence when certain offenses are supported only by the testimony of a single witness?
Updating this ILB entry from yesterday, attorney Greg Bowes writes:
I am responding to your request for comments on the notion that “these type of offenses” might require corroborating evidence to the testimony of a single witness.And from Christopher Fronk, deputy prosecutor in LaPorte County:
It is important to consider the context of how the rule developed to allow conviction from the uncorroborated witness. In Wedmore v. State, 237 Ind. 212, 220, 143 N.E.2d 649, 653 (1957), the Indiana Supreme Court determined that a prosecution witness in a statutory rape case need not first be examined by a psychiatrist to determine whether she is competent to offer uncorroborated testimony of the crime. It is scary to read the dissent in that case, which cited several psychiatrists and psychologists making such claims as “fantasies of being raped are exceedingly common in women, indeed one may almost say that they are probably universal.” 143 N.E.2d at 658. The trend, historically, is to presume all witnesses to be competent, as opposed to creating a presumption in sex crime cases that anyone making a claim of rape must be crazy. The majority in Wedmore places the judgment in the hands of the jury, where it belongs.
I like the incredible dubiosity rule. I like that it is used sparingly, because that gives juries primacy in our system of justice. In sex cases, many times there is no ability to corroborate with DNA or other physical evidence, and many times there is no second witness, other than the perpetrator. To require corroborative evidence in a case where the defendant admits sexual intercourse, but asserts it was consensual, relegates the victim’s testimony to a nullity. We should rely on our juries to weed out the false claims. To require corroborative evidence to support testimony of a single witness is likely to invalidate truthful as well as false claims.
Great topic for discussion. Just a few general thoughts:
Regarding the concept of “contrary to human experience”: There is a culture in this country that lives its entire existence contrary to the human experience of those who would ever be able to sit on the bench. As a prosecutor for 16 years, I have seen (and smelled) dwellings that defy belief. I have encountered uncontested fact patterns that boggle the mind and conduct that is beyond any ability to rationally understand. These things are the stuff that many crimes are made of. I do not think it appropriate or acceptable that a judge, even a great one, sitting far removed from the place and time and people involved in a case should supplant the judgment of a jury on the basis that the story as presented in a cold record just doesn’t mesh with that judge’s version of human experience.
A second, but related thought: To reverse a case based on incredible dubiosity, the court must necessarily determine that the entire jury was unreasonable. That is a big deal, and a slippery slope in a country where the jury of peers is the bedrock of our criminal justice system. Of course juries sometimes get it wrong, for various reasons, but we need to be very careful, as the courts have historically been, when treading in a jury’s domain.
Thirdly, regarding facts in “this kind of case”: When children are molested, there is often a delay in reporting. That delay is sometimes attributed to coercion by the accused, sometimes by shame on the part of the victim, and other more or less common causes. Those circumstances are understandable, but often lead to a lack of any physical evidence, even in light of advances in DNA and other forensic science. If the accused isolated the victim during the crime and does not confess, what evidence will there be? Many times these cases rise and fall on the victim’s ability to believably convey the facts to a jury, which is more than just the victim’s words. The burden of proof is exceptionally difficult to overcome under these circumstances, in order to get a guilty verdict in the first place. To have a judge months later decide that the jury was unreasonable in making that determination would be devastating in many ways to the individual involved in that case, and the prosecution of cases of this kind altogether.