People v. Jones

MOSK, J.

Naturally I concur in the majority opinion I have prepared for the court. I write separately to discuss the corpus delicti questions this case has raised.

I

The corpus delicti rule requires the prosecution to produce evidence beyond a defendant’s extrajudicial confession or admission (see People v. Carpenter (1997) 15 Cal.4th 312, 394 [ 63 Cal.Rptr.2d 1 , 935 P.2d 708 ]) that a crime occurred before it may introduce the defendant’s statement in evidence. In an illuminating law review comment, J. Terry Schwartz explained that the law of corpus delicti contains “two distinct, though related, concepts. . . . First, the corpus delicti is a necessary element of the prosecution’s case in a criminal trial . . . Thus, a precondition to conviction is that the state prove that a ‘crime’ has been committed—otherwise there could not possibly be guilt, either in the accused or in anyone else.” (Comment, California’s Corpus Delicti Rule: The Case for Review and Clarification (1973) 20 UCLA L.Rev. 1055, fn. 1 (hereafter Schwartz).) The corpus delicti is a showing that someone committed a crime (People v. Cobb *320 (1955) 45 Cal.2d 158, 161 [ 287 P.2d 752 ]; The King v. Horry (1951) N.Z.L.R. [1952] 111, 121), and “one does not begin to inquire whether the prisoner is guilty of a crime until one has established that a crime has been committed.” (Regina v. Onufrejczyk (1955) 1 Q.B. 388, 394 (per Lord Goddard, C. J.),) 1

“The second concept is closely related to the first. The ‘corpus delicti rule’ prohibits the prosecutor from establishing the corpus delicti . . . through the use of the extrajudicial statements of the defendant. [Citations.] Thus the state must prove the corpus delicti independently of the accused’s out-of-court declarations. The rule further provides that once the corpus delicti has been proved by such evidence aliunde, the extrajudicial statements then become admissible to determine the defendant’s connection with the crime.” (Schwartz, supra, 20 UCLA L.Rev. at p. 1055, fn. 1.) Hence, “before a confession may be introduced” independent evidence must show “that a crime has been committed by someone.” (People v. Cobb, supra, 45 Cal.2d at p. 161 .) In this second sense, “[t]he corpus delicti rule is a rule of law that governs the admissibility of evidence.” (People v. Diaz (1992) 3 Cal.4th 495, 529 [ 11 Cal.Rptr.2d 353 , 834 P.2d 1171 ] (lead opn.); accord, id. at p. 577 (conc, and dis. opn. of Mosk, J.).)

The purpose of the corpus delicti rule is to assure that “the accused is not admitting to a crime that never occurred.” (People v. Jennings (1991) 53 Cal.3d 334, 368 [ 279 Cal.Rptr. 780 , 807 P.2d 1009 ].) The rule arose because of the law’s unease with inflicting punishment when a “confession may have been misreported or misconstrued, elicited by force or coercion, based upon mistaken perception of the facts or law, or falsely given by a mentally disturbed individual. [Citations.] Thus, it is clear that the corpus delicti rule was established to prevent not only the possibility that a false confession was secured by means of police coercion or abuse but also the possibility that a confession, though voluntarily given, is false.” (City of Bremerton v. Corbett (1986) 106 Wn.2d 569, 576-577 [ 723 P.2d 1135, 1139 ].)

In this case, however, the prosecution met its burden. “[M]any other circumstances of deep inculpatory import” (The King v. Horry, supra, N.Z.L.R. [1952] at p. 124) beyond defendant’s extrajudicial statements were available to support the trial court’s conclusion that the prosecution had established the corpus delicti of oral copulation.

*321 n

With 32 principal categories of special circumstances (Pen. Code, § 190.2) and a decision of this court interpreting one of them “so broad[ly] in scope as to embrace virtually all intentional killings” (People v. Morales (1989) 48 Cal.3d 527, 575 [ 257 Cal.Rptr. 64 , 770 P.2d 244 ]) (cone, and dis. opn. of Mosk, J.)), the 1978 death penalty law gives a prosecutor wide discretion to seek the death penalty for a defendant charged with first degree murder. That latitude increases the risk that an innocent person will be executed. Yet because the death penalty, once exacted, is irrevocable, the need for the most reliable possible determination of guilt and penalty is paramount as a matter of policy. It is also constitutionally compelled: “[T]he Eighth Amendment imposes heightened reliability standards for both guilt and penalty determinations in capital cases . . . .” (People v. Cudjo (1993) 6 Cal.4th 585, 623 [ 25 Cal.Rptr.2d 390 , 863 P.2d 635 ].) By contrast, a mistake in a sentence of imprisonment is not beyond repair. Yet the increasing length of prison terms for violent crime also requires a highly reliable fact finding procedure in determining guilt.

Therefore, I wish to emphasize the corpus delicti rule’s importance in ensuring reliable determinations of guilt and, in capital cases, penalty. Though the rule is venerable, it is not a recondite academic curiosity or a quaint vestige of times when confessions commonly may have been extracted by torture or beating. Its importance endures. 2

Apparently every state, by statute, rule, or court decision, adheres to some variant of the corpus delicti rule. (See 1 McCormick on Evidence (4th ed. 1992) Confessions, § 145, p. 555; State v. Parker (1985) 315 N.C. 222, 229 [ 337 S.E.2d 487, 491 ]; Com. v. Forde (1984) 392 Mass. 453 [ 466 N.E.2d 510, 513 ].) The rule arose because of the law’s unease with inflicting punishment solely on the basis of a confession that might be false and the product of insanity or coercion (Jones v. Superior Court (1979) 96 Cal.App.3d 390, 397 [ 157 Cal.Rptr. 809 ]), or of the mistaken belief that a false confession would be beneficial (Note, Proof of the Corpus Delicti *322 Aliunde the Defendant’s Confession (1955) 103 U.Pa. L.Rev. 638, 643). “[W]hen the admission is full and positive, it perhaps quite as often happens that it has been made under the influence of the terrible fear excited by the charge, and in the hope that confession may ward off some of the consequences likely to follow if guilt were persistently denied.” (Cooley, Constitutional Limitations (8th ed. 1927) Protections to Personal Liberty, p. 654 (hereafter Cooley).) In similar words, the law’s unease with uncorroborated confessions “stems from the possibility that the confession may have been misreported or misconstrued, elicited by force or coercion, based upon mistaken perception of the facts or law, or falsely given by a mentally disturbed individual. [Citations.] Thus, it is clear that the corpus delicti rule was established to prevent not only the possibility that a false confession was secured by means of police coercion or abuse but also the possibility that a confession, though voluntarily given, is false.” (City of Bremerton v. Corbett, supra, 106 Wn.2d 569, 576-577 [ 723 P.2d 1135, 1139 ].)

The risk of erroneously executing an innocent individual because of a false confession appears to form one basis for the law’s unease with convicting him or her solely on the basis of a confession. (Schwartz, supra, 20 UCLA. L.Rev. at pp. 1063-1064.) In certain early English homicide cases “in which no body was found and conviction was based solely on a confession, the courts experienced the shock of having the person who had been thought dead turn up alive after his supposed murderer had been executed.” (Note, Proof of the Corpus Delicti Aliunde the Defendant’s Confession, supra, 103 U.Pa. L.Rev. at p. 638.) It has been claimed that as many as “[flour English cases dramatically influenced the concept of corpus delicti. In each . . . the defendants were convicted of murder, [and] some of them were [hanged], yet the alleged victim subsequently reappeared.” (Comment, Other Crimes Evidence to Prove the Corpus Delicti of a Child Sexual Offense (1985) 40 U. Miami L.Rev. 217, 237, fn. 130; but see post, fn. 3.) In Perrys’ Case (1660) 14 Howell’s State Trials 1311, three members of the Perry family were hanged, on the strength of the confession of one of the Perry sons, for murdering William Harrison. After the Perrys’ execution Harrison reappeared, announcing that he had been kidnapped and carried off to Turkey, and that he eventually escaped and returned to England via Portugal. 3

*323 The view emerges from time to time that the rule is of “declining utility.” (Willoughby v. State (Ind. 1990) 552 N.E.2d 462, 466 [collecting authorities].) This view is not new: “That the rule has in fact any substantial necessity in justice, we are much disposed to doubt,” District Judge Learned Hand mentioned in a World War I-era sabotage case. (Daeche v. United States (2d Cir. 1918) 250 F. 566, 571 .) In my view, the corpus delicti rule is not of “declining utility”; rather, if nothing else, it is an important impediment to the growth of the pernicious industry of jailhouse informants.

We must bear in mind that a purported extrajudicial confession or admission may arise from any source, including the testimony of a jailhouse informant. A primary purpose of the corpus delicti rule is to blunt the damaging exercise of “ ‘the self-interest of the accomplice’ ” (Wong Sun v. United States (1963) 371 U.S. 471, 489 [ 83 S.Ct. 407, 418 , 9 L.Ed.2d 441 ]). Our Legislature has recognized the potential unreliability of jailhouse informants’ statements, requiring that a jury be instructed about them in cautionary terms on request. (Pen. Code, § 1127a; see also id., § 4001.1.) It enacted the law because “[njumerous county jail informants have testified to confessions or admissions allegedly made to them by defendants while in custody .... Snitches are not persons with any prior personal knowledge of the crime . . . They testify only that a defendant made an-inculpatory statement to them while in proximity in the jail or place of custody, [f] [Such persons] gather restricted and confidential information by duplicitous means and thereby lend the credibility of corroboration to wholly fabricated testimony.” (Assem. Com. on Public Safety, Rep. on Assem. Bill No. 278 (1989-1990 Reg. Sess.) as amended May 4, 1989.)

Noteworthy among the arguments favoring the view that the corpus delicti rule is of “declining utility” are that under modem police procedures confessions are seldom obtained by torture or “third degree” methods of interrogation, and that the law now requires that the police alert a suspect to his or her rights to silence and to counsel. (See Willoughby v. State, supra, 552 N.E.2d at p. 466 ; Schwartz, supra, 20 UCLA L.Rev. at pp. 1089-1090.) None of the arguments against the continued viability of the corpus delicti rule, however, satisfactorily address the problem of fabricated jailhouse-informant testimony. The risk of relying solely on such informants’ evidence to obtain a conviction, without any corroborating evidence, is too great to be countenanced.

*324 By requiring corroborative evidence before a jailhouse informant’s testimony can be heard, the corpus delicti rule helps insulate the trier of fact from such testimony when it would be perjured or otherwise unreliable. This prophylactic function is important given the fact that “juries are likely to accept confessions uncritically” (Jones v. Superior Court, supra, 96 Cal.App.3d at p. 397 ); frequently “the confession operates as a kind of evidentiary bombshell which shatters the defense” (People v. Schader (1965) 62 Cal.2d 716, 731 [ 44 Cal.Rptr. 193 , 401 P.2d 665 ], overruled on another ground in People v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17 [ 20 Cal.Rptr.2d 582 , 853 P.2d 1037 ]). Yet conviction by proof consisting of confession alone is less desirable than one secured by other evidence. “We have learned the lesson of history, ancient and modem, that a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” (Escobedo v. Illinois (1964) 378 U.S. 478, 488-489 [ 84 S.Ct. 1758, 1764 , 12 L.Ed.2d 977 ], fns. omitted.) “If confessions could prove a crime beyond doubt, no act which was ever punished criminally would be better established than witchcraft; and the judicial executions which have been justified by such confessions ought to constitute a solemn warning against the too ready reliance upon confessions as proof of guilt in any case.” (Cooley, supra, at pp. 653-654, fn. omitted.)

The United States Constitution, apparently recognizing “the lesson of history” (Escobedo v. Illinois, supra, 378 U.S. at p. 488 [ 84 S.Ct. at p. 1764 ]), itself applies the corpus delicti rule to prosecutions for treason: “No person shall be convicted of treason unless on the testimony of two Witnesses to the same overt act, or on confession in open Court.” (U.S. Const., art. III, § 3, cl. 1.) The drafters included this provision, unusual in the Constitution in that it refers to a substantive crime, because “[t]he [Constitutional] Convention numbered among its members men familiar with government in the Old World, and they looked back upon a long history of use and abuse of the treason charge” (Cramer v. United States (1945) 325 U.S. 1, 15 [ 65 S.Ct. 918, 925 , 89 L.Ed. 1441 ]).

England’s treason statute dates to 1351 and the reign of Edward III. (Cramer v. United States, supra, 325 U.S. at p. 16 [ 65 S.Ct. at p. 926 ]; see Rex v. Casement (1916) 1 K.B. [1917] 98, 98-99, fn. 1, 134.) Among its abuses were trials during the reign of Henry VIII (Cramer v. United States, supra, 325 U.S. at pp. 17-18, fn. 23 [65 S.Ct. at pp. 926-927]), notably that of Sir Thomas More, in which More was convicted of high treason because of perjured testimony that More said he could not recognize Henry VIH’s supremacy over the Church of England. On the strength of that testimony *325 More was beheaded. (Trial of Sir T. More for High Treason (1535) 1 Howell’s State Trials 385, 387-391, 394, 396; see also Trial of Fisher, Bishop of Rochester, for High Treason (1535) 1 Howell’s State Trials 395.)

Whether members of the Constitutional Convention had More’s case in mind I do not know. But in formulating the two-witness requirement for a treason conviction unless the defendant confessed in open court, they must have been aware of abuses of the kind. (See generally, Cramer v. United States, supra, 325 U.S. 1 .) Thus the drafters gave “a venerable safeguard against false testimony ... a novel application by requiring two witnesses to the same overt act.” (Id. at p. 24 [ 65 S.Ct. at p. 930 ].) The potential for abuse should, especially in light of the problems with fabricated jailhouse-informant testimony in California, give pause to those who argue that the corpus delicti rule is less important than it once was.

In sum, the corpus delicti rule increases the reliability of a determination of guilt, and as such remains vital to the just imposition of punishment. There remains the question, which our majority opinion herein does not decide, whether article I, section 28, subdivision (d), of the California Constitution, or Evidence Code section 351, or both, abolished the corpus delicti rule insofar as it operates to exclude relevant evidence.

Ill

Article I, section 28, subdivision (d), of the California Constitution provides that “[e]xcept as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding .... Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103.” Evidence Code section 351 declares that “[ejxcept as otherwise provided by statute, all relevant evidence is admissible.” Relevant evidence is that “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” {Id., § 210.) The Law Revision Commission comment to section 351 explains that “[s]ection 351 abolishes all limitations on the admissibility of relevant evidence except those that are based on a statute, including a constitutional provision.” (Cal. Law Revision Com. com., 29B West’s Ann. Evid. Code (1995 ed.) foil. § 351, p. 180.)

“To determine what a statute means, ‘we first consult the words themselves, giving them their usual and ordinary meaning.’ ” (Smith v. Fair Employment & Housing Com. (1996) 12 Cal.4th 1143, 1155 [ 51 Cal.Rptr.2d 700 , 913 P.2d 909 ] (plur. opn.).) “When the statutory language is clear and *326 unambiguous, there is no need for construction and courts should not indulge in it.” (People v. Fuhrman (1997) 16 Cal.4th 930, 937 [ 67 Cal.Rptr.2d 1 , 941 P.2d 1189 ].) Under these limitations on our license to construe statutes, it is not surprising that some appellate justices have expressed the view that the lawmakers abolished the corpus delicti rule insofar as it prohibits introducing a defendant’s extrajudicial confession or admission unless the corpus delicti of the crime is established. (People v. Culton (1992) 11 Cal.App.4th 363, 373-377 [ 14 Cal.Rptr.2d 189 ] (conc. opn. of Timlin, J.) [discussing Cal. Const., art. I, § 28, subd. (d)]; People v. Starr (1970) 11 Cal.App.3d 574, 583-584 [ 89 Cal.Rptr. 906 ] (dis. opn. of Gustafson, J.) [mentioning Evid. Code, § 351, but acknowledging the force of arguments that the corpus delicti rule survived the Evidence Code’s adoption].) It would seem that an extrajudicial admission or confession ordinarily would be “relevant evidence.” (See Culton, supra, 11 Cal.App.4th at p. 374 (conc. opn. of Timlin, J.).)

Nevertheless, there is good reason to believe that neither the constitutional nor the statutory enactment abolished the corpus delicti rule in California.

First, the presence of three other statutes compels the conclusion that the Legislature did not view Evidence Code section 351 or the state Constitution as abolishing the corpus delicti rule.

Penal Code section 190.41 provides that “[notwithstanding Section 190.4 or any other provision of law, the corpus delicti of a felony-based special circumstance enumerated in paragraph (17) of subdivision (a) of Section 190.2 need not be proved independently of a defendant’s extrajudicial statement.” If the lawmakers believed that they had abolished the corpus delicti rule, they would not have created this exception to it.

Evidence Code section 1228 provides that if the court finds the hearsay statement of a child under age 12 sufficiently trustworthy in certain respects, it may admit the statement “for the purpose of establishing the elements of the crime in order to admit as evidence the confession of a person accused of violating” certain criminal laws. In other words, the statement may be used to satisfy the requirements of the corpus delicti rule. “Section 1228 basically allows evidence that would otherwise be inadmissible to be admitted in child sex crimes cases, but solely for the purpose of establishing the corpus delicti and thus paving the way for [the] trier of fact to hear the defendant’s inculpatory statements.” (Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 826 [ 56 Cal.Rptr.2d 870 ].) If the corpus delicti rule no longer existed, Evidence Code section 1228 would not be necessary.

Subdivision (c) of Penal Code section 868.5 provides: “The testimony of the person or persons chosen [to comfort a witness testifying for the prosecution by being present in court] who are also prosecuting witnesses shall *327 be presented before the testimony of the prosecuting witness. The prosecuting witness shall be excluded from the courtroom during that testimony. Whenever the evidence given by that person or those persons would be subject to exclusion because it has been given before the corpus delicti has been established, the evidence shall be admitted subject to the court’s or the defendant’s motion to strike that evidence from the record if the corpus delicti is not later established by the testimony of the prosecuting witness.” The statute’s last sentence restates the corpus delicti rule: If a comforting witness related the defendant’s extrajudicial inculpatory statement but the comforted witness could not later corroborate it with direct testimonial evidence, the jury must be told to disregard the inculpatory statement.

The lawmakers enacted the foregoing three provisions after both article I, section 28, subdivision (d), of the California Constitution and Evidence Code section 351 came into being. There would have been no need to do so if the corpus delicti rule did not still exist.

Second, the lawmakers may not regard the corpus delicti rule as a rule of evidence at all. “It is simply not clear that the corpus delicti rule is always identified and classified as a procedural rule of evidence rather than a rule of the substantive criminal law.” (Schwartz, supra, 20 UCLA L.Rev. at pp. 1078-1079.) Characterizing the corpus delicti rule as substantive criminal law would account for its presence in Penal Code sections 190.41 and 868.5. The lawmakers may have been influenced by references to the law of corpus delicti as substantive criminal law that occur in legal literature. “[T]he corpus delicti embraces the fact that a crime has been committed by someone . . . without embracing the further fact (needed for conviction) that the defendant was the one who did or omitted that act or was otherwise responsible therefor.” (LaFave & Scott, 1 Substantive Criminal Law (1986) § 1.4(b), p. 24.) A law professor has referred to “the sensible substantive criminal law doctrine of corpus delicti.” (Amar, The Future of Constitutional Criminal Procedure (1996) 33 Am. Crim. L.Rev. 1123, 1139; see also Amar & Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause (1995) 93 Mich. L.Rev. 857, 922; cf. Mullen, Rule Without Reason: Requiring Independent Proof of the Corpus Delicti as a Condition of Admitting an Extrajudicial Confession (1993) 27 U.S.F. L.Rev. 385, 386 [“corpus delicti rule” is one both of substantive criminal law and of evidence].)

As Schwartz suggests, the law of corpus delicti in fact may be substantive law even in its second, or evidence-related aspect. The corpus delicti rule is sometimes seen as a substantive corroboration rule that increases the reliability of a confession. “[L]ike the parol evidence rule, [it] is a rule of substantive law and not a rule of evidence.” (Ballard v. State (1994) 333 Md. *328 567, 571, fn. 1 [ 636 A.2d 474, 476 ].) Like the rule requiring conviction by evidence of each element of a crime beyond a reasonable doubt, it may be a substantive rule that, though requiring the introduction of a quantum and kind of evidence before it is satisfied, is not a rule of evidence itself, and hence remains unaffected by article I, section 28, subdivision (d), of the California Constitution or Evidence Code section 351. (See People v. Cahill, supra, 5 Cal.4th at p. 500 .)

Hence, it would not be surprising if the lawmakers perceived the law of corpus delicti to be substantive criminal law in both of its aspects (see ante, p. 321, fn. 2), and therefore did not intend it to be affected by evidence admissibility laws.

The Court of Appeal in People v. Starr, supra, 11 Cal.App.3d at page 583 , declared of the corpus delicti rule: “We do not believe that such a firmly established and fundamental rule of the criminal law of years’ standing was overruled by any vague and indecisive provision in the Evidence Code—nor do we believe that the Legislature so intended.” The same is true of the California Constitution.

Appellant’s petition for a rehearing was denied March 18, 1998.

It is often useful to parse .this definition for purposes of analysis; “ ‘ “The corpus delicti of a crime consists of two elements!:] the fact of the injury or loss or harm, and the existence of a criminal agency as its cause.” ’ ” (People v. Zapien (1993) 4 Cal.4th 929, 985-986 [ 17 Cal.Rptr.2d 122 , 846 P.2d 704 ].) In other words, in the case of unlawful homicide “[c]orpus delicti means, first, that a crime has been committed, that is to say, that the man is dead, and that his death has been caused by a crime.” (Regina v. Onufrejczyk, supra, 1 Q.B. at p. 393.)

Except as noted, the ensuing discussion addresses the law of corpus delicti only in its second, or evidence-related aspect—i.e., that independent evidence must corroborate a defendant’s inculpatory extrajudicial statement. It is not in question that the state must establish the corpus delicti of a crime—i.e., provide evidence “that the offence charged has been committed by someone” (The King v. Horry, supra, N.Z.L.R. [1952] at p. 121; accord, People v. Cobb, supra, 45 Cal.2d at p. 161 [ 287 P.2d 752 ])—before a defendant may be convicted of it. Indeed, in Penal Code section 871 the Legislature has instructed that at the end of the preliminary examination the magistrate must order the complaint dismissed if “it appears . . . that no public offense has been committed . . . .” This requirement could hardly exist in concert with other statutory provisions entirely abolishing the concept of corpus delicti.

Recent English cases have stated that “there is apparently no reported case in English law where a man has been convicted of murder when there has been no trace of the body at all.” (Regina v. Onufrejczyk (1955) 1 Q.B. 388, 394 (per Lord Goddard, C. J.)); see also McGreevy v. Director of Public Prosecutions (H.L. 1973) 1 All E.R. 503, 510 (per Lord Morris of Borth-y-Gest).) But Perrys’ Case, supra, 14 Howell’s State Trials 1311, would seem to belie Onufrejczyk’s statement, even if, as one commentator has asserted, it is “the only case in which a clearly innocent individual'was executed solely on the basis of an erroneous confession.” (Schwartz, supra, 20 UCLA L.Rev. at p. 1063, fn. 39.) In any event, extreme *323 precision in deciphering historical events is not needed to understand the principle behind the corpus delicti rule: A prisoner might admit or confess, for reasons of mistake, delusion, or coercion, to a crime no one committed, and to guard against punishing the innocent, evidence beyond an inculpatory extrajudicial statement is needed to establish that someone did commit a crime.