Speaking legally, what is a confession? | VailDaily.com

Speaking legally, what is a confession?

Rohn Robbins
Vail Law
AP photoJohn Mark Karr, looking straight ahead, arrives at the Boulder County Jail. Karr was arrested in Bangkok and flown to Los Angeles, where he decided not to fight extradition to Colorado on a warrant listing charges of murder, kidnapping and sexual assault on a child in JonBenet's 1996 slaying.

The Karr wreck of the Ramsey case has stirred the word “confession” like the vapor from a witches brew in the overheated cauldron of the media.

For those of you who have been hiding out with Osama in the South Waziristan highlands of Afghanistan lately, you have likely never heard the name John Mark Karr. For the rest of us, we have heard it as incessantly in recent days as we once were drummed with the names of O.J., Kobe and the ineffable Michael Jackson.

In the event you have been kickin’ with Osama, John Mark Karr is, to say the least, an odd duck. To say the most, he may be both a pedophile and the murderer of JonBenet Ramsey, the Boulder 6 year-old who was brutally murdered in her home on Christmas night nearly a decade ago.

If you’ve been watching and listening to the spectacle of John Mark Karr (and who can avoid it?), you’ll no doubt note that Karr, while in the custody of Thai officials, made some rather incriminating remarks stating, with little if any equivocation, that he was “with JonBenet when she died” and that “her death was an accident.”

Strange words indeed whether he committed the crime or not. Apparently, he made other similar remarks to the officers in Los Angeles who were escorting him to jail.

The question (among what seems like another half million the JonBenet/Karr matter has raised) is the distinction between a self-incriminating statement and a confession. To what standard must a self-incriminating remark reach in order to constitute a confession?

“Self-incrimination” may be loosely defined as a statement against self. Perhaps more accurately, self-incrimination is constituted of either acts or declarations, either at testimony, at trial, or prior to trial, by which a person implicates him or herself in a crime.

Even passing acquaintance with the law may set off a Constitutional alarm bell or two tolling in your cranium. The Fifth Amendment (as in “I’ll take the 5th”) may come to mind.

The Fifth Amendment (as well as similar provisions in many state constitutions and laws) prohibits the government from requiring a person to be (or “bear”) witness against him or herself involuntarily or to furnish evidence against him or herself. Simply, the accused cannot be compelled to aid the government in convicting him or her.

There is little doubt that John Mark Karr’s self-inculpating comments amount to self-incrimination.

It would be a wiley defense lawyer who could perform an act of sophistry sufficient to turn the statement “I was with JonBenet when she died” into something as innocuous as meaning that he was with her “in spirit” rather than in corporeal being. However, the physical evidence may show that, indeed, the strange connection between JonBenet Ramsey and Karr existed only in his fecund and twisted imagination.

What Karr’s statements appear not to be are a confession, not in the legal sense at least.

A “confession” may be defined as the voluntary statement made by a person charged with the commission of a crime, communicated to another person wherein he or she acknowledges him/herself to be guilty of the offense charged and who discloses the circumstances of the act.

A couple of quick things to note here.

First, when Karr blabbered to the media and his official escorts, he had not yet been charged with any crime connected to the JonBenet Ramsey murder.

In fact, Karr was not advised of the crimes against him until his feet hit soil in Los Angeles several days after making the incriminating remarks. In other words, as he was not charged with commission of any crime related to the death of JonBenet Ramsey, he could not have technically “confessed.”

It is expected that he will not be formally charged with the various crimes (kidnap, sexual assault on a child and murder) until Monday, August 28th (the day before this column will likely appear).

It is worth observing that, notwithstanding the fact that he had not yet been charged, it appears that he did, in fact, disclose at least some circumstances of the acts alleged against him. It remains to be seen, however, if he did so with sufficient specificity and with sufficiently detailed knowledge to have done anything more than spew what he had might have gleaned about the case independent of any involvement in it, or merely given free reign to a sick and fertile imagination. In any event, the requirement of being charged trumps whatever relevant disclosures he may or made not have made.

Simply, if he was not charged, while his disclosures may, indeed, be self-incriminating, the necessary prerequisite to constitute a confession is lacking.

Even where a statement amounts to a confession, it is rarely, if ever, sufficient to convict.

There must be independent evidence, direct or circumstantial, of a corpus delicti. “Corpus delicti” means, literally, “the body of the crime.” In others, evidence, not merely the confession, must be introduced at trial which proves, beyond a reasonable doubt that the crime was committed by the accused. The corpus delicti cannot be proved by confession alone.

While confession may be good for the sole, it is not the end-all, be-all of a criminal case. To the contrary, hard evidence is necessary to convict even the most obliging of confessors.

While there can be little argument that what John Mark Karr has said to date will do little to either help at trial him or endear him to a vengeful public, it appears equally apparent that he has neither technically confessed nor will what he has held out in his statements, alone, be enough to slip a noose about his slender neck.

Before leaping to conclusions about John Mark Karr, we would all be wise to bear in mind that falsely incriminating statements are anything but unique, particularly in high-profile cases, such as that of JonBenet Ramsey. In the infamous Lindbergh baby kidnaping case of 1932, for example, well over 100 people admitted to the crime before Bruno Hauptman was ultimately charged, tried and convicted of the murder of Charles Lindbergh, Jr.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. Hear him at 7 p.m. Wednesdays on KZYR radio (97.7 FM) as host of “Community Focus.” Reach Robbins 926-4461 or robbins@colorado.net.

Vail Daily, Vail, Colorado

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