I've always thought that the Opper rule was something of an odd duck. That principle basically says that you can't convict someone solely on the basis of an uncorroborated confession.
I get the reason behind it. We don't want people thrown in prison for crimes that they didn't actually commit.
But the principle always seemed to me somewhat overprotective. What are really the odds that someone confesses to a crime that didn't even happen? Seriously?
My reaction in this regard probably isn't unique. I've read a handful of Opper cases in the past. Pretty much every one of them holds that the kind of "corroboration" that you need is really minimal. As long as we can point to something that even hints that there was a crime and that the defendant was involved -- e.g., that the defendant was somewhere in the same area code within a week or so -- we're more than happy to throw away the key.
I've never been too bummed about that. Despite the fact that I know that false confessions undeniably exist, my sentiment is still to not worry too much about having much "proof" of the crime apart from some low level indication that, yes, a crime in fact transpired and it's at least possible that the defendant did it.
Given those foundational predicates, I wasn't surprised either at how this case came out or my initial reaction to it. The question is whether the Opper rule requiring corroboration applies to parole revocations; or, more accurately, in federal courts, to revocation of supervised release. State courts have uniformly said it doesn't. The Ninth Circuit goes the same way.
Yes, the offender gets thrown into prison in both cases. But there are a variety of differences between parole revocations and actually convicting someone in the first instance. Not the least of which being that parole revocations only require proof by a preponderance of the evidence (rather than reasonable doubt), and also allow a boatload of otherwise inadmissible evidence. Parole and supervised release are viewed as a "privilege," so we're willing to be more "flexible" with these procedures. So it's not surprising that Judge McKeown holds that, indeed, the Opper rule is inapplicable.
This again comports with my intuition.
Even more so, I might add, once I read the facts. The defendant here is a sex criminal (kiddie porn) and confesses to his probation officer that he violated several conditions of his supervised release, including but not limited to having impermissible -- as well as creepy -- interactions with children. He gives lots of really scary details about how he approached the relevant kids, where they were, what they were wearing, what they did, etc.
Totally credible. Lock the guy up. What are the odds he's just making this stuff up and that we're throwing him back in jail for something he didn't do? Pretty much nil.
My gut reaction is, again, that there's no reason for this guy to lie, and that his theory that he said all of this detailed stuff "just to get his probation officer off his back" doesn't make any sense. Judge McKeown has the same reaction, I think, holding that the level of detail was so specific that it more than justified putting the guy back in prison.
I couldn't have been some sympathetic.
Though let me tell you a story. One that -- coincidentally -- I was telling my wife just last evening.
After I graduated from Dartmouth, while I was at law school in Boston (just a short drive away), I decided to go back and take some additional classes. I'm not entirely sure why. Part of me, perhaps, thought that I hadn't gotten all that I could out of college, and wanted to remedy that situation. Regardless, through some procedure I can't currently recall, Dartmouth let me enroll in some classes -- and happily cashed my check -- and off I went. The plan being to "do it right" this time and really engage in the classroom.
Except, not surprisingly, I got busy. With law school. With life. My enthusiasm for "doing it right" quickly waned. In the end, I treated the additional classes just as I had treated classes before I had graduated. I attended few -- if any -- classes, took the exam, and was done.
I remember being exceptionally frustrated with myself for my failure to live up to my internal goals. To have had ambition to do the right thing and to have so readily abandoned my ideals. That frustration increased to a fever pitch when I got back my grades in the relevant classes. Terrible. The worst I've ever received. At any level. Sufficiently terrible that I'm embarrassed -- to this day -- to reveal them. But I can promise you I have a distinct, and incredibly vivid, recollection of opening up my grade report in the mail and looking at the grades. As well as how I felt as a result. I can picture it like it was yesterday.
I can picture even more vividly how I felt when I got my monthly statement from the bank and, after getting my grades, viewed the cancelled check that I paid for that quarter's tuition. Even more miserable. I could tell you exactly -- virtually to the dollar -- how much the check was for. No small sum, especially given my financial circumstances at the time. I remember my handwriting on the check, which was blue, and how I wrote "Dartmouth College" in big cursive letters on the payee line. The embarrassment. The internal shame. When I recall those events, even twenty-some years later, I still shudder.
All of this is incredibly vivid.
There's only one more thing I'll add to this tale of internal woe and misery.
I have no idea if it's true. Literally. No idea.
It's very possible that the story I've recounted is true. It's etched in my memory even more solidly than the meal I had yesterday. (Grilled fish.) It's vivid. It's credible. I remember it.
But, somewhere, there's a part of my memory that tells me that it's not true. That this was just a dream. A repeated one, perhaps. But something that I confabulated. Something that I think I did, but that I didn't in fact do.
I have no idea which of these two versions of the truth in fact recounts the story of my life. If you asked me to bet, I would have an incredibly hard time picking which version to put my money on. I simply couldn't tell you whether what I've just described in fact transpired.
There are a couple of other events like this in my life. Minor ones, to be sure. But ones that make me think that it's entirely possible for someone to make things up and entirely believe them. The only reason I'm able to tell my personal version of this story is that there's a part of me that thinks it's fake. Are there parts of my internal life story that are utter fiction; that I've confabulated with no recognition that they're false? I have no idea. Definitionally, if you make things up and actually believe them, then you believe them. You doubt them no more than any of your other memories. So you have no idea they're there.
The point of recounting this (perhaps overly personal and revealing) story is that I recall these events in vivid, excruciating detail. Even if they didn't, in fact, transpire. As a result, I'm not sure that the emphasis in Judge McKeown's opinion -- which, again, I initially shared -- on the "details" that Hilger was able to remember as proof that he actually committed these offenses is nearly as powerful as one might initially think. It's not that we should primarily be worried that Hilger was making up the stories on the spot. Such stories might indeed lack detail. Our more pressing concern might instead be that Hilger might at some level believe his version of the truth. Even if it in fact does not reflect reality.
That's especially true in a situation like this. Everyone agrees that Hilger's an incredibly impressionable person. Low functioning. Moreover, he's a sex offender. Someone who has thoughts about little kids. Presumably including fantasies about little kids. But who's unable (for a variety of reasons) to actualize those fantasies in real life.
Distinguishing those fantasies from reality is no small task. Particularly when, as here, no one steps forward to confirm anything Hilger says. He says he met a variety of little girls on a particular trail and acted in very creepy ways towards them. Sure, there's such a trail. But even after presumably extensive investigation, no little girl comes forward and yes, yep, that happened to me. We simply take Hilger's word for it. His belief, for example, that he convinced a 10-year old girl to touch his penis, and that the little girl then agreed to take off her shirt, but didn't. Someone wearing pink shorts, sandals, and who lived in a nearly trailer park.
Someone who perhaps existed only in Hilger's mind.
Look, in the end, I have no beef with Judge McKeown's opinion. I think it's the right result. We are pretty lax about putting people back into prison. Even if there might perhaps be little principled distinction between putting someone back in prison for X offense based on Y, on the one hand, and straightforwardingly putting them into prison for Y. We do, in fact, fundamentally distinguish between the two.
So given that doctrinal backdrop, the Ninth Circuit's holding seems right. Because Hilger might have in fact inappropriately touched a little girl. And it doesn't detain us much that we might not be able to establish this beyond a reasonable doubt. No matter. Back to prison.
We may nonetheless want to be a little bit careful here. Or at least rely less on the availability of detail as a predictor of accuracy.
Because memories can be incredibly detailed and still demonstrably untrue. Trust me.
On my own end, I think I can verify whether my particular memory is a confabulation. There's a chest full of old college memorabilia in my bedroom closet. Including my grade reports. I think that if I in fact received a grade from particular post-college classes, I would have kept it. So it'd be in there.
I thought about looking in there before typing this post. But to be totally honest, I'm a little nervous about looking in there. In part for fear that I'll find out that, in fact, it's true.
I kid you not when I say that's an incredibly real possibility. I think there's a darn good chance there's a grade report -- and/or a cancelled check -- in there. I have such a vivid memory of them, and had (and have) such a strong reaction, I can't imagine I'd have thrown them out.
But it's also distinctly possible that they're not there. Because they never existed.
Memories are weird things. Detailed or not.