People v. Starr

¶1I dissent.

¶2The rule requiring proof of the corpus delicti by evidence other than the extrajudicial statements of the defendant was the result of a judicial decision, not of any statute. No case has considered the effect of the Evidence Code1 on the rule.

¶3The first question is whether the Evidence Code abrogated the rule.

¶4On the one hand, it is arguable that the rule survived the adoption of the Evidence Code. Section 1220 of the Evidence Code was intended to state the existing law as found in subdivision 2 of repealed section 1870 of the Code of Civil Procedure. Despite the fact that subdivision 2 permitted as evidence against a party his “act, declaration, or omission,” the Supreme Court held that in criminal cases there must be evidence of the corpus delicti other than what is contained in the extrajudicial statements of the defendant.

¶5On the other hand, it is arguable that the rule did not survive the adoption of the Evidence Code. “Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.) The prior law did not contain any such sweeping prohibition of court decisions on the inadmissibility of evidence. Before the Evidence Code, courts “had to develop many, if not most, of the rules of evidence with but partial *584guidance from the statutes.”2 The Evidence Code was designed to be “an official handbook of the law of evidence—a kind of evidence bible for busy trial judges and lawyers.”3 It does not serve that purpose if court-made rules excluding evidence are to exist and not be found in the Evidence Code.

¶6Since a “statute” includes a constitutional provision (Evid. Code, § 230), it is necessary to determine whether the corpus delicti rule is so indispensable to a fair trial that it is encompassed within the due process clause of the federal4 or state5 Constitution. I can find no evidence that it is.

¶7In my view the better of the two positions is that the corpus delicti rule did not survive the adoption of the Evidence Code. If that is not what the Legislature intended, an amendment to the' Evidence Code can easily be made although, for reasons I have stated elsewhere,6 I think the corpus delicti rule is illogical, unsound and unnecessary.

¶8The second question is whether, assuming that the corpus delicti rule survived the adoption of the Evidence Code, the determination of whether there is proof of the corpus delicti by evidence other than the extrajudicial statements of the defendant is to be made by the judge or by the jury. I think the Evidence Code has clearly made the determination one for the judge.

¶9As I understand it, the corpus delicti rule is one of the admissibility of evidence. In People v. Frey (1913) 165 Cal. 140 [131 P. 127] it was held that the trial court on its own motion “should have told the jury the true rule with reference to the admission of confessions and the necessity for independent proof of the corpus delicti.” (Italics added.) When a prima facie showing that the crime charged has been committed by someone, the “defendant’s extrajudicial statements are then admissible . . .” (People v. Cullen (1951) 37 Cal.2d 614 [234 P.2d 1], Italics added.) “It is, of course, elementary that admissions cannot be introduced until proof of the corpus delicti has been made.” (People v. Howk (1961) 56 Cal.2d 687 [16 Cal.Rptr. 370, 365 P.2d 426], Italics added.) “It is unquestioned that [an extrajudicial statement by the defendant] is inadmissible in the absence of independent proof of the corpus delicti.” (People v. *585Hamilton (1963) 60 Cal.2d 105 [32 Cal.Rptr. 4, 383 P.2d 412]. Italics added.)

¶10The admissibility of a defendant’s extrajudicial statements is conditioned upon a prima facie showing of the “preliminary fact”7 of the corpus delicti. Section 405 of the Evidence Code provides that when “the existence of a preliminary fact is disputed,” the “court shall determine the existence or nonexistence of the preliminary fact and shall admit or exclude the proffered evidence as required by the rule of law under which the question arises.” Thus, for example, the judge, not the jury, determines that a confession or admission shall be excluded from evidence because it was obtained in a manner violative of the defendant’s constitutional rights. If the judge admits the extrajudicial statement, the jury’s only task is to determine the truthfulness of the statement.

¶11I submit that in most instances the determination of whether there has been a prima facie showing of the corpus delicti is simple as compared to the determination of whether a confession is, for example, voluntary. Moreover, a judge is much better suited to understand whether a prima facie case has been established than is a jury. In the case at bench, the defendant did not object to the introduction of his extrajudicial statements on the ground that no corpus delicti had been shown and he did not later move to strike the testimony regarding his extrajudicial statements on that ground. Thus this was a case in which the existence of the preliminary fact (i.e., some evidence that a bribe had been given to defendant) was not even disputed within the meaning of section 405 of the Evidence Code.

¶12Before the Evidence Code was adopted, the procedure applying the corpus delicti rule resulted in confusion of the jury. In People v. Cullen (1951) 37 Cal.2d 614 [234 P.2d 1] the judge “stated in the jury’s presence the previous conclusion that the prosecution had produced prima facie proof of the corpus delicti to satisfy the legal requirements for admissibility of the defendant’s declarations.” Then he instructed the jury that it was required to find whether the corpus delicti had been established. Although the Supreme Court said that there was no merit in the defendant’s contention that he was not given the benefit of the jury’s determination of that issue, it would be surprising indeed if a jury, having heard the judge rule that the corpus delicti was established, would find that it was not established. In People v. Spencer (1963) 60 Cal.2d 64 [31 Cal.Rptr. 782, 383 P.2d 134] the judge instructed the jury that it was required to find that the corpus delicti had been established “to authorize the reception of *586such declarations and statements in evidence and their consideration by the jury.” He also instructed: “Whether offered evidence is admissible is purely a question of law.” Although the Supreme Court found nothing inconsistent in these instructions, it seems to me that a jury would necessarily be confused by the instructions.

¶13The current standard instruction on the corpus delicti (CALJIC (3d ed.) No. 2.72) states in part: “No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any confession or admission made by him outside of this trial.” While this instruction does not speak expressly in terms of the admissibility of evidence, the fact remains that the net effect of the instruction is to direct the jury to disregard the extrajudicial statements of the defendant “unless there is some proof of each element of the crime independent of” the extrajudicial statements. This requires “jurors to perform the impossible task of erasing the hearsay statement from their minds if they conclude that the condition of admissibility has not been met.” (6 Cal. Law Revision Com. Rep. (1964) p. 30.) It was this very task which section 405 of the Evidence Code was designed to eliminate.

¶14The majority opinion in this case does not attempt to explain why, if the rule does exist, its application remains for the jury despite the clear declaration to the contrary contained in section 405 of the Evidence Code. That problem is too important to ignore and I do not believe it is met by citing cases in which the question was not raised.

¶15In summary, I believe that the corpus delicti rule did not survive the adoption of the Evidence Code but that if it did, the jury no longer has the function of determining whether the corpus delicti has been established. The failure to instruct the jury on this subject in the case at bench was not error because no jury should be instructed on the subject.

¶16I would affirm the judgment.

¶17A petition for a rehearing was denied October 20, 1970. Gustafson, J., was of the opinion that the petition should be granted. Respondent’s petition for a hearing by the Supreme Court was denied December 15, 1970. Wright, C. J., and Mosk, J., were of the opinion that the petition should be granted.