Maryland Court of Appeals Abrogates Accomplice Corroboration Rule

Why? Why would a defendant rat out his “accomplice” to the cops or prosecutors? A few general reasons come quickly to mind: First, sometimes it just happens, when a suspect is being interrogated and the name just comes out. Second, there’s misdirected anger, when a defendant gets nailed for something and believes it’s unfair that he has to go down but the other guy is going to get away with it. Why him? Why should he take the fall?

Third, because a defendant comes to the realization that he’s not going to walk and sees opportunity. Whether it’s the chance to snitch and get credit that will serve to reduce his sentence or there’s some hated person, and this is a chance for revenge. It may even serve to accomplish both purposes, a sentence reduction and vengeance. As long as the defendant is going down anyway, why not make the most of it?

There is only one hurdle to making this work, the accomplice corroboration rule, which “requires that accomplice testimony be independently verified to sustain a conviction.” It’s not much. Any independent corroboration will do, no matter how slight.

If someone was, in fact, an accomplice in the crime, it shouldn’t be too onerous a burden to find something, anything, to independently corroborate the testimony. But according to the Maryland Court of Appeals (it’s highest court), to expect any independent evidence to corroborate the mere “say so” of an accomplice is too much to ask.

For reasons that follow, we abrogate the rule and hold that the jury, after proper instruction about the possible unreliability of accomplice testimony, is entitled to weigh the sufficiency of such evidence without the need for independent corroboration.

On its surface, it doesn’t seem entirely unreasonable. After all, the weight and sufficiency of the testimony is still subject to the jury’s oversight, and the argument against accomplice testimonial evidence can compel a jury to reject it as unreliable. On the other hand, the testimony of an eyewitness is sufficient to convict, so why would a single witness’ testimony be reliable enough to convict in one instance but require corroboration when it’s an accomplice?

The court noted that accomplice corroboration has no storied history, but arose as a fix when juries were left to deliberate without the wise guiding hand of the judge.

In other words, because newly-established rules prevented judges from influencing how juries perceived the facts presented, jurisdictions assumed that a stringent or categorical approach was the only way to protect against the unreliability of accomplice testimony. As a consequence, “nearly half of the jurisdictions of the United States” adopted an accomplice corroboration rule, requiring, in varying degrees, that the testimony of an alleged accomplice be corroborated by independent evidence, that is, evidence not dependent on an accomplice.

This “categorical” approach was deemed necessary because “jurors are ‘incapable of determining reliably the veracity of the accomplice testimony.'” The risk of unreliability was too great to leave it to the jury in the absence of any independent corroboration.

Is a scintilla of independent evidence too much to ask? Maryland says, “Hell, yeah,” whereupon it offers a litany of similar problems.

The arbitrariness of the accomplice corroboration rule is amplified when one considers that there is no similar rule for other interested witnesses. Testimony from jailhouse informants, for instance, is sufficient to sustain a conviction without corroboration even though such testimony is (arguably) less reliable than that of an accomplice. See, e.g., Correll v. State, 215 Md. App. 483, 496-502 (2013) (allowing the jury to assess the credibility of jailhouse informant testimony); Russell D. Covey, Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375, 1403 (2014) (“accomplice testimony retains at least some indicia of reliability because ‘the accomplice inculpates herself in the process.’” (citation omitted)). Testimony of accessories after-the fact, which also should be considered with caution because it might have been induced by the prosecution, similarly does not require corroboration. See Rivenbark v. State, 58 Md. App. 626, 634 n.1 (1984) (“If a witness qualifies merely as an accessory after the fact, he is not usually regarded as an accomplice and hence his testimony need not be corroborated.”). The testimony of a witness who is paid by a party to do so (e.g., an expert witness) can, in a given case, raise similar reliability concerns; yet, once again, no corroboration requirement exists. See Scott v. State, 310 Md. 277, 294 (1987). It has also been said that “the greatest source of injustice in the form of conviction of innocent men is the erroneous identification by eye-witnesses,” “[y]et the testimony of a customer in a bank who gets a fleeting glimpse of the robber and who identifies defendant as the man he saw is enough to convict the defendant, but the testimony of three or four of defendant’s partners, if uncorroborated, is insufficient under our law.”

The analogy to eyewitness testimony, on its face, seems apt, since it’s unreliability is well known, but the flaw is that an eyewitness has no motive to lie, to falsely accuse. Much as an eyewitness, usually the “victim,” may be interested in seeing a conviction, it’s only the conviction of a guilty person, not some random innocent person. It happens because of unreliability, not evil purpose.

But the better analogy is the jailhouse snitch, which is even more unreliable than an eyewitness and includes an inherent motive to lie as it inures to the snitch’s benefit to reduce his sentence no matter if the target is innocent. Any warm body will do to the jailhouse snitch.

The Court of Appeals’ rationale is an astounding exercise in backward logic. If they allow other bad evidence, why not allow this bad evidence as well? The obvious, and proper, answer to their justification is not to abrogate the accomplice corroboration rule, but to impose safeguards on other evidence that’s now admissible or sufficient but similarly too unreliable to sustain a conviction.

Ironically, since they openly recognize a litany of evidentiary problems that result in wrongful convictions, their response is to add accomplice corroboration to the list rather than fixing the list. But that would mean fewer convictions, even if the defendants happen to not be guilty. And since when is reliable evidence something a court should worry about anyway?

5 thoughts on “Maryland Court of Appeals Abrogates Accomplice Corroboration Rule

  1. Richard Kopf


    As you know, the Federal Rules of Evidence do not contain an accomplice corroboration rule. That’s probably because an accomplice makes an admission of criminal activity by himself or herself when testifying–its against one’s penal interest to admit participating in a crime and this common sense idea thus arguably provides an indicia of reliability.

    The foregoing said, and for what it may be worth, I give a non-model instruction regarding cooperators. It instructs the jury to view snitch testimony with greater caution and care than compared to the testimony of ordinary witnesses. My theory being is that snitches often have huge incentives under the Sentencing Guidelines to tailor their testimony in favor of the prosecution in order to obtain government sponsored motions for sentence reductions.

    In short, there is more than one way to skin a cat–with apologies to Cat who vigilantly guards Casa de SJ but with the dastardly Orange Cat keenly in mind.

    All the best.


    1. SHG Post author

      I totally understand why the feds have no accomplice corrob rule. Without snitches, they would never get a conviction.

  2. B. McLeod

    I surprised they did even this much analysis. I mean, if the defendant had an “accomplice,” it’s obvious the defendant is a criminal. It’s a step beyond the circular “victim.” So, no way they can go wrong letting the “accomplice” testify.

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