corroboration rule in Massachusetts

2025In it, he argues that the corroboration rule, which precludes a conviction based on an uncorroborated confession, see Commonwealth v. Forde, 392 Mass. 453 (1984), requires that the indictment be dismissed.

2025In Schap’s view, because the medical -------------------------------------------- [3] See Commonwealth v. Weaver, 474 Mass. 787, 791 (2016) (declining to expand corroboration rule to require evidence, beyond confession, linking defendant to crime); Commonwealth v. Burgos, 470 Mass. 133, 147 (2014) (“In a murder case, the additional evidence [required to satisfy the corroboration rule] ‘need only tend to show that the alleged victim is dead.’”), quoting Forde, 392 Mass. at 458 . -6- examiner who conducted the autopsy in this case could not determine the cause and manner of death until the defen

2025Leonard, and the other cases cited by Schap for a similar proposition, Commonwealth v. Costello, 411 Mass. 371, 374-376 (1991), and Commonwealth v. Landenburg, 41 Mass. App. Ct. 23, 25 (1996), were all decided at least twenty-five years ago, and none -7- of the corroboration rule, the evidence would satisfy it.

2025This corroboration rule does not require corroboration of each element of a crime, but "it does, at minimum, require corroboration of the fact that a crime was committed by someone." Costello, supra at 375 .

2002“In applying ‘the corroboration requirement, judges are obliged to exercise a discriminating judgment’. . . .” Commonwealth v. Charles, 428 Mass. 672, 679 (1999), quoting from Commonwealth v. Carr, 373 Mass. 617, 624 (1977). “[I]n evaluating whether a statement is adequately corroborated, a court should ‘not be stringent.’ ” Commonwealth v. Charles , 428 Mass, at 679-680, quoting from Commonwealth v. Drew , 397 Mass, at 75 n.10.

1999Finally, we conclude that the statement was properly corroborated and thus meets the third test for admissibility under the exception. 2 In applying “the corroboration requirement, judges are obliged to exercise a discriminating judgment,” Commonwealth v. Carr, 373 Mass. 617, 624 (1977), and in evaluating whether a statement is adequately corroborated, a court should “not be stringent.” Commonwealth v. Drew, 397 Mass. 65 , 75 n.10 (1986).

2005The Supreme Judicial Court adopted the corroboration rule in Commonwealth v. Forde, 392 Mass. at 458 : “The corroboration rule requires only that there be some evidence, besides the confession, that the criminal act was committed by someone, that is, that the crime was real and not imaginary.” As we discussed in Commonwealth v. Manning, 41 Mass. App. Ct. 18, 20 (1996), a case involving a charge of operating a motor vehicle while under the influence of intoxicating liquor, where an intoxicated person, alone at the scene of a one-car crash, confesses to being the driver, this requirement is sati

2002We recognize that Commonwealth v. O’ Connor, supra, and Commonwealth v. Manning, supra, involve the corroboration rule for confessions, a rule that may be less demanding than the standard established in Commonwealth v. Latimore , 378 Mass 671, 676-677 (1979), see Commonwealth v. Costello, 411 Mass. 371, 374 (1991).

2015See Clements, supra. In Commonwealth v. Sineiro, 432 Mass. 735 , 745 & n.12 (2000), we extended the holding of Daye to include grand jury testimony of a witness who a trial judge determines is “falsifying a lack of memory.” See Commonwealth v. Maldonado, 466 Mass. 742, 755-756 , cert. denied, 134 S. Ct. 2312 (2014).

2002Id. at 742 . 5 The question arises whether the spontaneous utterances in question here — which likewise were contradicted by the declarants’ testimony at trial that the defendant had not hit Joel — require application of a corroboration requirement similar to that required for the grand jury testimony in Daye, Berrio, and Noble .

2005To the same effect, see Commonwealth v. McNelley, 28 Mass. App. Ct. 985, 987 (1990).

1996Commonwealth v. McNel-ley, 28 Mass. App. Ct. 985, 987 (1990).

2002We believe that circumstantial evidence sufficient to constitute corroboration may also serve in combination with the other circumstantial evidence in the case to support “[a] web of convincing proof. . . made up of inferences that are probable, not necessary.” Commonwealth v. Hilton, 398 Mass. 63, 67 (1986), quoting from Commonwealth v. Best, 381 Mass. 472, 483 (1980).

1993Although references in our cases to the scope of that requirement are usually very general, see Commonwealth v. Montecalvo, 367 Mass. 46, 52 (1975); Commonwealth v. Best, 381 Mass. 472, 483 (1980); Commonwealth v. Porter, 384 Mass. 647, 653 (1981), it is clear that evidence of consciousness of guilt may not be used to supply a missing element of the offense charged.

2006The judge focused on the corroboration requirement of that exception, namely that “the statement [against penal interest], if offered to exculpate the accused, must be corroborated by circumstances clearly indicating its trustworthiness.” Commonwealth v. Drew, 397 Mass. 65, 73 (1986), quoting United States v. Thomas, 571 F.2d 285, 288 (5th Cir. 1978).

1999Finally, we conclude that the statement was properly corroborated and thus meets the third test for admissibility under the exception. 2 In applying “the corroboration requirement, judges are obliged to exercise a discriminating judgment,” Commonwealth v. Carr, 373 Mass. 617, 624 (1977), and in evaluating whether a statement is adequately corroborated, a court should “not be stringent.” Commonwealth v. Drew, 397 Mass. 65 , 75 n.10 (1986).

2025Leonard, and the other cases cited by Schap for a similar proposition, Commonwealth v. Costello, 411 Mass. 371, 374-376 (1991), and Commonwealth v. Landenburg, 41 Mass. App. Ct. 23, 25 (1996), were all decided at least twenty-five years ago, and none -7- of the corroboration rule, the evidence would satisfy it.

2017In Commonwealth v. Landenburg, 41 Mass. App. Ct. 23, 25 (1996), we found insufficient corroboration of a 5 defendant's confession to stealing merchandise where the only other evidence was the existence of the items described in the confession in the apartment of the defendant's girl friend.

2025The purpose of the corroboration rule is to "guard against conviction for imaginary crimes." Commonwealth v. Villalta- Duarte 55 Mass. App. Ct. 821, 825 (2002), quoting Commonwealth v. Forde, 392 Mass 453, 458 (1984).

2009Ibid.

2023L. c. 272, § 11, the standard was "especially appropriate for defining the corroboration requirement" of § 63 because "[i]t distills our construction of comparable corroboration requirements, derives from the interpretation of a statute relating to sexual crimes, and furthers the statutory aim of ensuring that the occurrence of the criminal act alleged by a victim is proved, at least in part, by some source other than the victim's testimony." White, supra at 739-740 . 4 After reading White and Helfant, trial counsel concluded that she had "made a mistake" in advising the defendant, as there ha

2020L. c. 277, § 63, and we previously stated that the 2006 amendment to the statute, St. 2006, c. 303, § 9, eliminated 3 Although in Commonwealth v. White, 475 Mass. 724 (2016), we did not directly address the issue presented here -- whether tolling applies to the corroboration requirement -- we implicitly concluded that tolling did not apply to the corroboration requirement.

2007In this further development of the law, the corroboration doctrine set forth in Forde has been applied to other types of criminal offenses that do not implicate a body as “corpus delicti.” Thus, in Commonwealth v. Leonard, 401 Mass. at 472-473 , in reviewing a conviction under G.

1991Even if the defendant’s statements to the therapists could be considered admissions, the corroboration rule applies .to admissions as well as confessions. 2 See Commonwealth v. Leonard, 401 Mass. 470, 472-473 (1988) (corroboration "rule applies to admissions that fall short of being a confession).

2025In Schap’s view, because the medical -------------------------------------------- [3] See Commonwealth v. Weaver, 474 Mass. 787, 791 (2016) (declining to expand corroboration rule to require evidence, beyond confession, linking defendant to crime); Commonwealth v. Burgos, 470 Mass. 133, 147 (2014) (“In a murder case, the additional evidence [required to satisfy the corroboration rule] ‘need only tend to show that the alleged victim is dead.’”), quoting Forde, 392 Mass. at 458 . -6- examiner who conducted the autopsy in this case could not determine the cause and manner of death until the defen

2025He, therefore, asked the SJC “to reconsider expanding the corroboration rule as it applies to juvenile confessions in light of research that juveniles are more likely than adults to confess to crimes they did not commit . . . ” Weaver, 474 Mass. at 791.

2025The rule thus requires “that there be some evidence, besides the confession, that the criminal act was committed by someone, that is, that the crime was real and not imaginary.” Commonwealth v. Carter, 481 Mass. 352, 361 (2019), quoting Forde, 392 Mass. at 458 .

2025In Schap’s view, because the medical -------------------------------------------- [3] See Commonwealth v. Weaver, 474 Mass. 787, 791 (2016) (declining to expand corroboration rule to require evidence, beyond confession, linking defendant to crime); Commonwealth v. Burgos, 470 Mass. 133, 147 (2014) (“In a murder case, the additional evidence [required to satisfy the corroboration rule] ‘need only tend to show that the alleged victim is dead.’”), quoting Forde, 392 Mass. at 458 . -6- examiner who conducted the autopsy in this case could not determine the cause and manner of death until the defen

2023Here, "[a]dditional corroboration was provided . . . in the explanation given by the defendant about how the accident occurred." Commonwealth v. Adams, 421 Mass. 289, 291 (1995).

2023See Mahar, 442 Mass. at 19 (attorneys not required "to foretell the future").

2023See Clarke, supra. Here, even if counsel had anticipated that § 63's corroboration requirement would be interpreted by analogy to Helfant, the defendant's ability to defend the charges would have remained the same, because the corroboration requirement was satisfied by his statements to police.

2020See Commissioner of Correction v. Superior Court Dep't of the Trial Court for the County of Worcester, 446 Mass. 123, 126 (2006) (examining sentence structure to aid statutory interpretation).

2020Id. at 740, quoting Commonwealth v. Helfant, 398 Mass. 214, 219 (1986).

2020See White, supra at 739-740 , quoting Helfant, supra (standard in Helfant that "corroborating evidence must relate to the specific criminal act at issue and, in particular, that it must consist of 'some specific testimonial fact, which, in the context of the case, is probative on an element of the crime' . . . especially appropriate for defining the corroboration requirement in the statute at issue").7 Although our interpretation of the corroboration requirement set a "high bar," this bar "is not insuperable," White, supra at 740 , and in the present case we conclude that the Commonwealth's ev

2016In Commonwealth v. Forde, 392 Mass. 453, 458 (1984), we announced the corroboration rule, which “requires corroboration that the underlying crime was in fact committed, thus preventing convictions against persons who have confessed to fictitious crimes.” Commonwealth v. DiGiambattista, 442 Mass. 423, 430 (2004), citing Forde, supra at 458 .

2016In Commonwealth v. Forde, 392 Mass. 453, 458 (1984), we announced the corroboration rule, which “requires corroboration that the underlying crime was in fact committed, thus preventing convictions against persons who have confessed to fictitious crimes.” Commonwealth v. DiGiambattista, 442 Mass. 423, 430 (2004), citing Forde, supra at 458 .

2015See Clements, supra. In Commonwealth v. Sineiro, 432 Mass. 735 , 745 & n.12 (2000), we extended the holding of Daye to include grand jury testimony of a witness who a trial judge determines is “falsifying a lack of memory.” See Commonwealth v. Maldonado, 466 Mass. 742, 755-756 , cert. denied, 134 S. Ct. 2312 (2014).

2015See Clements, supra. In Commonwealth v. Sineiro, 432 Mass. 735 , 745 & n.12 (2000), we extended the holding of Daye to include grand jury testimony of a witness who a trial judge determines is “falsifying a lack of memory.” See Commonwealth v. Maldonado, 466 Mass. 742, 755-756 , cert. denied, 134 S. Ct. 2312 (2014).

2015See Clements, supra. In Commonwealth v. Sineiro, 432 Mass. 735 , 745 & n.12 (2000), we extended the holding of Daye to include grand jury testimony of a witness who a trial judge determines is “falsifying a lack of memory.” See Commonwealth v. Maldonado, 466 Mass. 742, 755-756 , cert. denied, 134 S. Ct. 2312 (2014).

2009See Commonwealth v. Hubbard, 69 Mass. App. Ct. 232, 235-236 (2007).

2006The judge focused on the corroboration requirement of that exception, namely that “the statement [against penal interest], if offered to exculpate the accused, must be corroborated by circumstances clearly indicating its trustworthiness.” Commonwealth v. Drew, 397 Mass. 65, 73 (1986), quoting United States v. Thomas, 571 F.2d 285, 288 (5th Cir. 1978).

2004While it is true that a criminal defendant may not be convicted solely on the basis of an uncorroborated confession, for example, see Commonwealth v. Forde, 392 Mass. 453, 457-458 (1984), and that prior inconsistent grand jury testimony requires corroboration to support a conviction, see Commonwealth v. Daye, 393 Mass. 55, 74 (1984), the corroboration rule has not been extended to excited utterances.

2004While it is true that a criminal defendant may not be convicted solely on the basis of an uncorroborated confession, for example, see Commonwealth v. Forde, 392 Mass. 453, 457-458 (1984), and that prior inconsistent grand jury testimony requires corroboration to support a conviction, see Commonwealth v. Daye, 393 Mass. 55, 74 (1984), the corroboration rule has not been extended to excited utterances.

2003Cf. United States v. Lopez-Alvarez, 970 F.2d 583, 590 (9th Cir.), cert. denied, 506 U.S. 989 (1992) (corroboration must support essential facts admitted to justify jury inference of their truth). 4 Although the Forde rule was reiterated, without modification, in Commonwealth v. Morgan, 422 Mass. 373, 378 (1996), in subsequent decisions, consideration whether evidence was sufficiently corroborative has included evidence of the details of a confession.