Shumway, Bradley Jacobs

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. PD-0108-20 & PD-0109-20

BRADLEY JACOBS SHUMWAY, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE NINTH COURT OF APPEALS

MONTGOMERY COUNTY

SLAUGHTER, J., filed a concurring opinion.

CONCURRING OPINION

The Court concludes that the corpus delicti rule poses no impediment to upholding

Appellant’s convictions for indecency with a child, and in doing so it creates yet another

exception to the rule for certain types of sexual offenses committed against pre-verbal

children. I agree with this outcome, but write separately to express my view that, in an

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appropriate case, this Court should abolish the judicially-created corpus delicti rule entirely

because that rule no longer serves any legitimate purpose and has never been legislatively

adopted. But, because no party in the present case has requested that we abolish the rule, I

agree with the Court’s reasoning for purposes of resolving this case and join the opinion.

As the Court’s opinion notes, the corpus delicti rule dates back hundreds of years

and originated in England. The basic requirement of the rule is that the prosecution must

present evidence other than a defendant’s confession that proves the crime actually

occurred. Miller v. State, 457 S.W.3d 919, 924 (Tex. Crim. App. 2015) (stating that the

corpus delicti rule requires that “there must be ‘evidence independent of a defendant’s

extrajudicial confession show[ing] that the ‘essential nature’ of the charged crime was

committed by someone’”) (quoting Hacker v. State, 389 S.W.3d 860, 866 (Tex. Crim. App.

2013)). At the time of the rule’s creation, English courts were primarily concerned about

false confessions to non-existent crimes resulting from coercion or mental illness. Courts

thus adopted the corpus delicti rule with the goal of protecting against unreliable criminal

convictions based “solely on [a] false confession to a crime that never occurred.”

Carrizales v. State, 414 S.W.3d 737, 740 (Tex. Crim. App. 2013); accord Miller, 457

S.W.3d at 924 (noting that the rule is designed to “protect[] mentally infirm individuals

who confess to an imaginary crime and people who give an extrajudicial confession

because of official coercion”). Although the rule may have had an important place in the

common law, numerous developments in constitutional and statutory law over the past

several hundred years have resulted in enhanced protections against wrongful convictions

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based on false confessions. These developments have largely rendered the corpus delicti

rule unnecessary and obsolete.

First, for nearly a hundred years, the Supreme Court has recognized that the Due

Process Clause protects against coerced or involuntary confessions. In Brown v.

Mississippi, the Supreme Court observed that “the trial . . . is a mere pretense where the

state authorities have contrived a conviction resting solely upon confessions obtained by

violence.” 297 U.S. 278, 286 (1936). Thus, a confession procured through physical force

or duress cannot validly support a conviction. Id. at 287. The Court subsequently clarified

that psychological coercion similarly violates due process, including subjecting suspects to

extensive questioning while denying them sleep, food, legal advice, or contact with family.

See, e.g., Haynes v. Washington, 373 U.S. 503, 513 (1963) (suspect prohibited from calling

his wife until after he confessed); Reck v. Pate, 367 U.S. 433, 441–42 (1961) (suspect held

for eight days, was without adequate food, counsel, or the assistance of family or friends,

and was physically weak and in pain); Spano v. New York, 360 U.S. 315, 322–23 (1959)

(suspect’s requests to call his retained counsel were denied); Watts v. Indiana, 338 U.S. 49,

52–55 (1949) (suspect was held for six days and regularly questioned late into the night);

Ashcraft v. Tennessee, 322 U.S. 143, 153–54 (1944) (suspect questioned for thirty-six

hours without sleep).

In addition to prohibiting coercive interrogations, the Supreme Court requires law

enforcement to inform suspects of their right to counsel and their right against self-

incrimination prior to custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 476-

79 (1966); see also Wilkerson v. State, 173 S.W.3d 521, 527 (Tex. Crim. App. 2005)

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(“[T]he Miranda rule is intended to guard against coercive custodial questioning by police;

it protects a suspect from the possibility of physical or psychological ‘third degree’

procedures.”) (internal quotation marks and citation omitted). If a suspect chooses to

invoke his right to remain silent, police must stop all questioning. Miranda, 384 U.S. at

474. If he invokes his right to counsel, questioning must cease until he has been afforded

the opportunity to consult with counsel. Id.; see also Edwards v. Arizona, 451 U.S. 477,

484–85 (1981) (holding that once suspect invokes right to counsel during custodial

interrogation, all questioning must cease “until counsel has been made available to him,

unless the accused himself initiates further communication, exchanges, or conversations

with the police”). The Supreme Court noted in Miranda that the presence of an attorney

reduces the chances of coercive police tactics and increases the likelihood “that the accused

gives a fully accurate statement to the police . . . .” Miranda, 384 U.S. at 470. Each of these

procedural requirements helps guard against the possibility of law enforcement “trad[ing]

on the weakness of individuals” to obtain a confession. Id. at 455.

In addition to these safeguards, courts also protect against coerced confessions by

looking to the totality of the circumstances under which a confession was made to ensure

it was free and voluntary. Arizona v. Fulminante, 499 U.S. 279, 285-86 (1991); Blackburn

v. Alabama, 361 U.S. 199, 206 (1960). This may include not only circumstances suggesting

mental or physical coercion by law enforcement, but also a consideration of the defendant’s

mental state at the time of the confession, including any history of mental illness. See, e.g.,

Davis v. State, 313 S.W.3d 317, 337 (Tex. Crim. App. 2010) (requiring that courts assess

“the characteristics of the accused and the details of the interrogation” because “a

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confession given under the duress of hallucinations, illness, medications, or even a private

threat could render a statement involuntary”) (quotation marks and citation omitted); Delao

v. State, 235 S.W.3d 235, 239–41 (Tex. Crim. App. 2007) (“[A]n accused’s mentality is

but one factor among many to consider when evaluating the voluntariness of a

confession.”). The Texas Code of Criminal Procedure additionally contains numerous

safeguards against the admissibility of an involuntary statement. See TEX. CODE CRIM.

PROC. art. 38.21 (providing that statement is admissible only if “freely and voluntarily

made without compulsion or persuasion”); 38.22 (setting forth procedural and substantive

requirements for admissibility of out-of-court statements). Given the emergence of these

extensive constitutional and statutory safeguards, individuals need not rely on the corpus

delicti rule to protect against the possibility of a coerced or involuntary confession, for the

confession will be suppressed if it was not made knowingly, intelligently, and voluntarily.

Thus, the original rationale for the corpus delicti rule—preventing individuals operating

under duress or mental illness from confessing to an imaginary crime—is already satisfied

through these other more recent developments in the law.

Even more fundamental than the foregoing protections, however, modern notions

of due process require the prosecution to prove all the elements of its case beyond a

reasonable doubt, and this requirement affords defendants an added layer of protection

against wrongful conviction. In re Winship, 397 U.S. 358, 364 (1970). The standard “plays

a vital role” in protecting the accused and “is a prime instrument for reducing the risk of

convictions resting on factual error.” Id. at 363. “Reasonable doubt” has been defined as

harboring doubt based on reason, demanding moral certainty of the defendant’s guilt, and

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requiring a jury to acquit unless it is firmly convinced of the defendant’s guilt. 1 The jury is

free to acquit if it determines that the State’s evidence, including the defendant’s

confession, does not satisfy this burden. 2 In light of this rigorous standard that has been

deemed adequate to protect a defendant’s constitutional rights against arbitrary or irrational

verdicts, it makes little sense to also require proof of the corpus delicti, particularly since

doing so is neither constitutionally nor statutorily sanctioned.

In addition to the foregoing, I note here that courts in several other jurisdictions have

abandoned the corpus delicti rule based on extensive criticisms of the rule and its

effectiveness in protecting against wrongful convictions. For example, in State v.

Mauchley, the Utah Supreme Court abandoned the rule after conducting an extended

analysis of the rationales underlying the rule. 67 P.3d 477 (Utah 2003). The court reasoned

that the rule “inadequately safeguards individuals from the consequences of their false

confessions” because it fails to protect against the most common scenario—where an

individual confesses to a crime that did occur but was committed by someone else. Id. at

483. The court also observed that the rule may obstruct justice in cases where a crime lacks

a tangible injury (as in cases such as this one involving an assault of a child). Id. at 484.

Further, citing the constitutional and procedural safeguards discussed above, the court

reasoned that in light of those developments that protect against coerced confessions,

“retaining the corpus delicti rule for this purpose is unnecessary[.]” Id. at 486. Finally, the

1

See Reasonable Doubt: An Argument Against Definition, 108 HARV. L. REV. 1955, 1968 (1995).

2

The Due Process Clause also gives the State an affirmative duty to disclose any relevant evidence

that tends to negate guilt or mitigate punishment. See Brady v. Maryland, 373 U.S. 83, 87 (1963);

see also TEX. CODE CRIM. PROC. art. 39.14(h). This provides an additional safeguard against

wrongful convictions based on coerced or false confessions.

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court observed that the rule had become unworkable in the modern era given the growing

number and complexity of criminal offenses, which frequently means that the corpus

delicti is difficult to define or prove. Id. at 487-88 (observing that the rule is “ill-equipped

to adapt to the changing face of criminal law”). The court thus determined that the rule

“was ill-conceived and originally erroneous” and should be abandoned because it

“inadequately protects the innocent, yet allows the guilty to go free.” Id. at 485, 488.

Courts in other jurisdictions have echoed this reasoning in abandoning the rule. See, e.g.,

People v. La Rosa, 293 P.3d 567, 575 (Colo. 2013) (abandoning corpus delicti rule after

concluding that it was “too rigid in its approach, too narrow in its application, and too

capable of working injustice in cases where, as here, evidence of the corpus delicti is not

only non-existent but impossible to uncover”); State v. Suriner, 294 P.3d 1093, 1100 (Idaho

2013) (“The rule as applied does not protect against false confessions, but even its limited

application can be an impediment to convicting the guilty. Because the harm caused by the

rule exceeds whatever benefits there may be, we hold that the corpus delicti rule no longer

applies in Idaho.”). The rising tide of criticism against the corpus delicti rule justifies this

Court’s reconsideration of whether the rule continues to serve any legitimate purpose or

whether it instead, as many courts have concluded, now does more harm than good.

I also note that, in another recent case, this Court was asked to abolish the corpus

delicti rule but declined to do so, instead creating yet another exception to the rule (there,

by recognizing a “closely related crime” exception). Miller, 457 S.W.3d at 920, 922

(upholding conviction for aggravated sexual assault and concluding that “a strict

application of the corpus delicti rule is unnecessary when a defendant confesses to multiple

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criminal offenses within a single criminal episode or course of conduct if the crimes

confessed to are sufficiently proximate that the underlying policy reasons for the rule are

not violated”). Given the Court’s approach in Miller and the instant case, it appears likely

that, even if the corpus delicti rule technically remains a part of Texas law, it will continue

to be abrogated through the creation of new exceptions based on policy concerns. But, as

the Utah Supreme Court noted in its analysis of this issue, “numerous exceptions can soon

subsume a rule,” and the better course where a rule has been shown to be unworkable in

many applications is to simply abandon it, rather than trying to “work around the rule to

achieve justice.” Mauchley, 67 P.3d at 488. Although I agree with the Court’s approach in

the instant case because no party has expressly asked the Court to abandon the corpus

delicti rule here, as a general proposition, I would not continue down the path of creating

new exceptions to the rule as a “work around” when the better course is simply to abolish

an outdated and unworkable rule.

In sum, given the evolution of constitutional and statutory law in such a manner as

to provide ample protections against false confessions to crimes that never occurred, there

is no need for the corpus delicti rule in Texas criminal law. It is a court-created doctrine,

and our Legislature has never deemed it worthy of codification. Rather than continuing to

chip away at the rule by recognizing exceptions on a case-by-case basis, we should instead,

in an appropriate case, abandon the rule entirely as it no longer serves any legitimate

purpose and creates a windfall for defendants who have otherwise validly confessed to

their crimes. With these comments, I join the Court’s opinion.

FILED: February 2, 2022

PUBLISH