By Joseph Ax
NEW YORK, Feb 22 (Reuters) - When is a confession not
That question is at the heart of the case against Pedro
Hernandez, who was indicted after confessing last May to the
notorious 1979 kidnapping and murder of 6-year-old Etan Patz in
Hernandez's lawyer, Harvey Fishbein, has cited a rarely
invoked New York law to argue that Hernandez's confession alone
is not legally sufficient to support the charges.
That could be an uphill climb, given how liberally New York
courts have interpreted the law, according to more than half a
dozen law professors, defense lawyers and former prosecutors
interviewed by Reuters.
Under sections 60.50 and 190.65 of New York's criminal
procedure laws, a confession alone cannot form the basis of an
indictment. Instead, prosecutors must furnish "additional proof
that the offense charged has been committed."
In several key rulings, New York's highest court has found
that the requirement is a low bar to clear. The Patz case could
be a crucial test of whether the law has any teeth left.
Steve Zeidman, a law professor at the City University of New
York, said it represents a chance, however slim, for the
pendulum to swing in the other direction.
"You would think that given all we know about false
confessions ... courts would interpret these laws more
strictly," he said. "This case could help make it happen."
Patz vanished from a Manhattan street on his way to school,
leaving behind no evidence, no body and no witnesses in one of
the city's most notorious unsolved crimes.
More than 30 years later, Hernandez, 51, who worked at a
deli near the Patz home at the time, told police he strangled
the boy in the store's basement and dumped the body in the
Fishbein argues that Patz's disappearance alone doesn't
satisfy the law's requirement for "additional proof." He also
claims that Hernandez's confession was prompted by mental
"There is no evidence of anything other than the fact that
Etan Patz is missing," he wrote in a motion requesting a copy of
the grand jury minutes, a preliminary move before seeking a
dismissal of the charges.
Prosecutors countered in a reply motion that they have
provided enough evidence to satisfy the law.
'VERY LITTLE EVIDENCE' REQUIRED
The two statutes Fishbein is citing have not often been put
to the test because for most crimes there is physical evidence
left behind. When asked to consider the issue, the Court of
Appeals has previously found that little evidence of any kind is
needed to meet the requirement of "additional proof."
In the 1975 case People v. Daniels, the court held that the
only evidence needed to corroborate a confession is "some proof,
of whatever weight," that the crime had occurred. The court has
said in other rulings that the evidence also doesn't need to
link the confessor to the crime.
The Manhattan district attorney's office declined to comment
on what evidence prosecutors believe corroborates Hernandez's
They suggested, in court papers responding to Fishbein's
grand jury motion, that Patz's sudden disappearance would be
enough on its own to satisfy the statutes, which they said
require "very little evidence."
The court papers claimed Fishbein's own motion listed
"factors, from information that is publicly available," that
would serve to meet the statutory requirement.
"For example, it is widely known that Etan Patz left his
home on the morning of May 25, 1979, to walk to his school bus
stop near the corner of West Broadway and Prince Street and has
never been seen or heard from since that date," prosecutors
Pace University law professor Bennett Gershman, a former
prosecutor, said a grand jury should be able to make reasonable
inferences based on the circumstances of Patz's disappearance.
"This little boy was walking to the bus and never got
there," he said. "It's logical to infer that he was abducted and
University of Michigan law professor Steve Moran, who has
studied confession corroboration laws across the country, said
he would be "shocked" if Fishbein's argument swayed a judge into
tossing the indictment.
But Steven Banks, the attorney-in-chief for the Legal Aid
Society, said if courts accept that an unexplained disappearance
is enough to corroborate a murder confession, it will render the
LOWERING THE STANDARD
Corroboration statutes stem from a common law concept,
corpus delicti, which requires that prosecutors show a crime
occurred before securing a conviction. In homicide cases, the
rule prevents a situation where a supposed murder victim later
turns up unharmed.
According to Moran, the co-founder of the Michigan Innocence
Project, the standard has been steadily weakened since a 1954
U.S. Supreme Court case, Opper v. U.S.
In Opper the court held that evidence corroborating a
confession does not have to establish that the crime occurred
but must only "tend to establish the trustworthiness of the
statement" in federal cases. Many states have since followed
suit, Moran said.
"That's really no rule at all," he said. "The point of
having a robust corroboration rule is that people sometimes
confess to crimes that either did not occur at all or they
didn't commit, and that juries have an exceptionally hard time
recognizing that fact."
Manhattan Acting Supreme Court Justice Maxwell Wiley has
said he will rule on Fishbein's request for the grand jury
minutes next month. Fishbein said he plans to file a motion to
dismiss once Wiley has ruled.
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