By Bronson James of Salem, Oregon. Bronson is the Chief Deputy Defender of the Oregon Office of Public Defense Services. This guest column is a response to last week's guest column "The Most Important Thing the Legislature Didn’t Do".
I am the attorney who represented both Michael Simons and John Delp before the Court of Appeals. I wanted to weigh in on this important discussion to clear up some facts, and also to suggest that this issue warrants informed deliberation, not reactive legislation.
Corpus Delicti means “body of the crime.” It is a common law legal principle developed in England dating back to the fifteenth century. Anecdotally it traces its origins to a case where a defendant was convicted and executed for murder, only to have the alleged victim show up two years later. Legally, it means that there must be independent evidence that a crime actually occurred.
First, contrary to the assertion by Mr. Wilde in his article "The Most Important Thing the Legislature Didn't Do," Oregon is in step with the majority of states (and common law countries) in requiring independent evidence of a crime. In fact, the turn away from corpus delicti is relatively new, based upon the optimistic belief that modern practice and the decline of overt torture make false confessions much less likely. But still, only a minority of states have relaxed the corpus delicti rule. In fact, even notoriously “tough on crime” states like Texas enforce the corpus delicti rule.
Second, the bar for proving corpus delicti is incredibly low. In fact, it may be the single lowest evidentiary bar in Oregon criminal law. All a prosecutor must show is “slight evidence” that “tends to show,” or from which we can “infer” that a crime actually happened. Any proposals to lower this bar must seriously answer the question of whether there would be any bar remaining.
Third, the corpus delicti rule is an instance where the law recognizes an all too real aspect of human behavior, one recognized since before this country’s founding – sometimes people lie. A person may falsely confess because he was forced or compelled. He may seek notoriety (remember Jon Mark Karr who confessed to the murder of JonBenet Ramsey). Sometimes the mentally ill will confess to something they believe happened, but did not in fact occur.
We should be mindful of other states, such as Illinois and New Jersey who have halted capital executions recently because of serious problems in their state systems. A confession played a role in the conviction of many of those inmates. Consider also that roughly twenty-five percent of the defendants exonerated through DNA evidence, through the efforts of the Innocence Project, confessed or admitted to their alleged crime.
In the Simons case, both the Court of Appeals and the Oregon Supreme Court reviewed the entire trial record, including all testimony and evidence offered, and could not find any evidence, even “slight” evidence, that the charged crimes actually happened.
Where does the law, and our legislators, go from here? I would suggest that given the fact that the two highest courts in this state, after combing the record, could not find even “slight” evidence that a crime actually happened, either one of two possibilities emerge. In the first, “slight” evidence existed, but was never found by law enforcement. This points to a breakdown in investigation, not the law. In the second, “slight” evidence never existed to be found. In this case, the corpus delicti rule performed exactly as it has been designed to do for hundreds of years.
So how do we deal with alleged crimes against our most vulnerable members of society? Do we relax the law, or do we demand, and provide the funds for, superior law enforcement efforts on these cases. One possibility may be offering expert testimony linking observed psychological behavior to an act of abuse. But experts cost money and time, and often are not brought to these cases. DNA, trace fibers, and other forensic workups may also provide answers, but these too require an increased effort.
In short, I fully support dedicating ourselves to protecting the most vulnerable members of society. But I believe we balance that dedication with the presumption of innocence, and the corpus delicti rule, by focusing on investigation, not legislation. The cost in time and money to bring the full weight of science to bear on a case is well worth never having to repeat the scene of the alleged murder victim showing up years after the execution.