Allen v. Commonwealth (Supreme Court of Virginia): Virginia Supreme Court Rules on Extent of Corroboration Necessary to Corroborate Confession in Sexual Assault Case

by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail:  jcall@radford.edu

Richard Allen admitted to his daughter that he had engaged in inappropriate sexual behavior with his 4-year-old grandson on two separate occasions.[1]  His admissions involved inappropriate touching by him of his grandson and allowing his grandson to touch him inappropriately, although all of the touching occurred while both Allen and his grandson were fully clothed.  After making these admissions to his daughter, Allen went to the Lynchburg police and repeated his admissions to them.  Based on these confessions, Allen was convicted of aggravated sexual battery and sentenced to seven and a half years in prison, with seven years of the sentence suspended.

Allen appealed his conviction on the basis that there was insufficient corroboration of his confession to his daughter and the police outside the courtroom setting to sustain his conviction.  In order to understand the holding of the Virginia Supreme Court in this case,[2] it is necessary to explain the legal requirement of corpus delicti and the corpus delicti rule.

The corpus delicti requirement is that in criminal cases, the prosecution must establish that a crime actually occurred.  Many non-lawyers misunderstand the rule and often state it as a requirement that the government produce the dead body of the victim in murder cases.  This is somewhat understandable because questions about whether the corpus delicti requirement has been satisfied often arise in homicide cases.  The confusion also can be attributed in part to the fact that the Latin phrase corpus delicti is typically translated “the body of the crime.”  However, it is not absolutely necessary to produce a body in murder cases (although the prosecution’s case is likely to be significantly weaker without a body),[3] nor is the corpus delicti requirement limited to homicide cases.

In the Allen case, the corpus delicti requirement was clearly satisfied.  Allen’s statements to his daughter and to the police established all the elements necessary to prove aggravated sexual battery.  The issue was whether the corpus delicti rule was violated.  The corpus delicti rule is that a defendant may not be convicted solely on the basis of his own confession made outside of court.  There must be some corroboration of the confession.

The corpus delicti rule was established in English common law in the seventeenth century.  In a case from that era known as Perry’s Case, Perry, Perry’s brother, and Perry’s mother were all executed because Perry had confessed to murdering a man named Harrison, who had disappeared.  However, some time afterward, Harrison appeared alive and well.  American common law also adopted the corpus delciti rule, not only because it tends to follow English common law anyway, but also because of another famous case in Vermont involving facts similar to Perry’s Case (although no one was executed in the Vermont case).  These cases demonstrated the danger in permitting convictions for crimes based solely on the confessions of the accused without some other evidence confirming that a crime had actually occurred.

While the corpus delicti rule in Virginia requires corroboration of the extrajudicial confession of a defendant, only “slight” corroboration is necessary.  Moreover, the corroboration need not extend to all the elements of the crime, and it may be provided by either direct or circumstantial evidence.  Perhaps most importantly, Virginia cases indicate that if the evidence offered to corroborate the confession is as consistent with innocence as it is with guilt then the evidence fails to satisfy the corpus delicti rule.

In the Allen case, the Virginia Supreme Court concluded, in a 5-2 ruling, that the prosecution failed to provide the required slight corroboration of Allen’s confessions.  The evidence cited by the prosecution as sufficient corroboration was testimony from Allen’s daughter that Allen had numerous opportunities to be with his grandson because her family lived in the basement of Allen’s house, that her son often slept in the bed with his grandparents, that occasionally her son slept in bed with her father alone, and that her son and father often played and wrestled together alone.  The majority viewed this evidence as merely demonstrating that Allen had the opportunity to commit the crimes of which he was accused.  It also viewed the daughter’s testimony as equally consistent with Allen’s innocence as his guilt.

The two dissenting judges believed that the daughter’s testimony provided the slight corroboration needed to satisfy the corpus delicti rule.  They viewed her testimony about the wrestling that took place between her father and son as detailing “the precise circumstances during which Allen told police that the crime was committed.”   What the dissenting opinion fails to do is explain how that testimony was not equally consistent with innocence as guilt. 

It is obvious that the corpus delicti rule and its slight corroboration requirement are far from precise.  As a result, it is impossible to be certain in close cases as to what kind of evidence is necessary to slightly corroborate an extrajudicial confession.  However, the Allen case seems to suggest that the Virginia Supreme Court is willing to take a critical look at a trial judge’s determination that the prosecution has presented evidence establishing slight corroboration of a defendant’s confession.

[1] Whether Allen came forward on his own with this information, or whether he admitted his behavior when confronted by his daughter is unclear from the facts as described in the court’s opinion.

[2] Allen v. Commonwealth, 2014 Va. LEXIS 9 (2014).  (Can also be found at http://courts.state.va.us/opinions/opnscvwp/1130304.pdf).

[3] See, for example, Epperly v. Commonwealth, 294 S.E.2d 882 (1982).  The commonwealth also recently obtained a murder conviction against Randy Taylor in the Alexis Murphy case in Nelson County, even though Alexis Murphy’s body has still not been located (http://www.roanoke.com/news/crime/alexis-murphy-s-family-gets-some-closure-with-verdict/article_d07f2e85-adc6-5141-87cb-daf287fccc8b.html).

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.