CORPUS DELICTI REQUIRED TO PROVE PENETRATION (Reversed 10-17-2012)

A confession alone in not sufficient to prove the element of penetration for Predatory Criminal Sexual Assault. Thus, our Appellate Court, by JUSTICE NEVILLE reduces Jason Lara’s conviction from the Class X offense of Predatory Criminal Sexual Assault to the Class 2 felony of Aggravated Criminal Sexual Abuse, a lesser included offense.

It seems that Jason admitted in a written statement that he placed his finger into the victim’s vagina on two occasions. However, that was the only proof of penetration as the victim claimed that Jason had only placed his hand on her vagina. Citing cases from 1856 and 1904, the Court noted that the corroboration rule has changed very little since that time. You can read this case, People v Jason Lara, 1-09-1326, First District., Third Division, 3/31/11, that contains, among other things, an interesting discussion of the problems with confessions.
 Reversed by Illinois Supreme Court: http://www.state.il.us/court/Opinions/SupremeCourt/2012/112370.pdf
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11 Comments

  1. Bruce Mosbacher
    Posted April 11, 2011 at 9:10 pm | Permalink

    The question is when best to use this case/ make a corpus delicti argument? When the State rests? At the close of all the evidence? During closing argument? At a motion for a new trial?

  2. Chris Anderson
    Posted April 11, 2011 at 11:15 pm | Permalink

    Defendant is not required to file a motion for a directed verdict (MDV jury trial) or a motion for acquittal (MFA bench trial) at the close of the State’s evidence to preserve the issue. People v. Watkins. Nor does a defendant waive MDV or MFA if he presents evidence in his case, provided he renews the motion at the close of all evidence. People v. Milton. A JNOV does not exist by statute, and a judge may reserve ruling on all MDV or MFA until after a verdict or decision. Numerous cites and People v. Van Cleve. A motion for a new trial, on the other hand, is statutory.

    There appear to be no cases that state that failure to raise a MDV or MFA waives the issue for a JNOV or motion for a new trial.

    However, failure to request or tender an appropriate jury instruction waives the issue for a lesser included instruction challenge. People v. Patterson.

    In the People v. Lara, the defense requested a lesser instructions of PCSA, which the Appellate Court reduced the conviction for because of the corpus delicti rule.

    So, the fear is that if one only waits until a JNOV or Motion for a New Trial, it may be argued that the defense has waived the issue. So, at the minimum, an objection should be made at the instructions conference that the State’s tendered instructions should not be given because of corpus delicti not being proven. Consequently, one would need to tender an instruction to acquit the defendant, which actually is a MDV or MFA at the close of all the evidence, or possibly risk waiver of the issue by way of failure to request or tender an instruction.

    Bottom line: I think defense counsel, at least, needs to do a MDV or MFA at the close of all the evidence. That avoids the oddity of doing it in the instructions conference, AND it seems to preserve the issue for the instructions conference, so as to not alert the State or Judge to tender their own lesser included instruction if the proof wasn’t sufficient. Therefore, one would be able to argue for a complete acquittal in a JNOV instead of just asking for reduction of the conviction to a lesser as in People v. Lara.

  3. Bruce Mosbacher
    Posted April 13, 2011 at 7:44 am | Permalink

    @ Chris
    I have never in my 29+ years in the business seen an “instruction to acquit.” Do you have one in your trial book? I thought they only gave instructions like that in England.

    Also, doesn’t the Appellate Court have the authority to impose a conviction on the lesser, even if not requested at trial by the defense?

  4. Dan Walsh
    Posted April 14, 2011 at 6:36 am | Permalink

    I have argued this “corpus delecti” issue to a judge in a murder case. The judge laughed at me and said “what are you talking about corpus delecti there’s a dead body and a confession – denied.” I also drafted and asked for an instruction in that same case that stated that if the jury found that there was no evidence other than the defendant’s confession the jury must find the defendant not guilty of murder. Guess what? The judge denied that one too – and laughed at me some more. When the case got to the appellate court, however, it was reversed outright after a wonderful brief was written by OSAD. The only evidence of the murder was the defendant’s confession and an autopsy report that was changed after the ME learned of the confession. And notably the OSAD lawyer agreed that the instruction accurately stated the law and raised it in her brief as grounds for reversal when the trial court. But because the murder was reversed outright, the appellate court never addressed that issue. Soon after that case was resolved, OSAD raised the corpus issue in a not quite analogous case. The difference being that THE TRIAL LAWYER CONCEDED IN OPENING STATEMENT THAT A MURDER OCCURRED. Apparently the appellate court felt that the trial lawyer, a very well known one and a very good one but one who never raised the corpus issue below, waived the corpus issue by his conceding remarks in opening. Something to think about.

  5. Bruce Mosbacher
    Posted April 14, 2011 at 8:32 pm | Permalink

    ” And notably the OSAD lawyer agreed that the instruction accurately stated the law and raised it in her brief as grounds for reversal when the trial court.”

    Huh???

  6. Dan Walsh
    Posted April 14, 2011 at 10:03 pm | Permalink

    What huh?

  7. Dan Walsh
    Posted April 15, 2011 at 1:04 pm | Permalink

    replace “when” with “in.” Geez you are such a pain Bruce.

  8. Bruce Mosbacher
    Posted April 15, 2011 at 3:39 pm | Permalink

    @ Dan TY.

  9. Chris Anderson
    Posted April 25, 2011 at 9:42 pm | Permalink

    @Bruce: I was responding to your question about whether it was wise to NOT make a Motion for a Directed Verdict, and pointing out that IF you failed to make such a Motion for a Directed Verdict, that you would, at a minimum, need to object to the normal instructions at the jury instruction conference, and then tender an instruction to find the defendant not guilty.

    That is why, I said that you should make a Motion for a Directed Verdict at the close of all the evidence, which “avoids the oddity of doing it in the instructions conference.” See, for example, People v. McFadden, 245 N.E.2d 878 (Ill. App. 1st Dist., 1969) (judge has authority to dismiss the indictment, and the instruction to the jury to do so would be a mere formality).

    This seems repetitious to my first response to your question of when to raise the issue of failure by the State to prove corpus delicti, but maybe you didn’t read the entirety of what I initially wrote.

  10. stu
    Posted April 27, 2011 at 1:04 pm | Permalink

    2 comments: Robyn Hayes and I tried a pcsa and the State nolle’d all the lesser counts before trial. They couldn’t prove penetration so it was a NG. The jury was bothered about there not being a “lesser” instruction. (They of course phrased it differently.) Would it have been ineffective not to ask for one? In hind sight no (and we couldn’t because our client didn’t want it- remember that is his choice not the lawyers’) The case is different than Lara as our client’s statement was exculpatory and the vic said there was penetration. The state’s doctor, thanks to a great cross by robyn, finally agreed and said there was no evidence of penetration.
    2nd point:I tried a misdemeanor (strange it was with robyn again) and at the close of the entire case was invited by the judge to make a motion for DVA which I did and he granted.
    How often do we fail to make that motion at the end of trial when the evidence is no longer looked at in a light favorable to the State?

  11. Bruce Mosbacher
    Posted April 28, 2011 at 6:53 am | Permalink

    @ Stu

    Poor Robyn.

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