The ‘Corroborative Rule’ from a comparative and critical perspective

Abstract

In general, a conviction may be based on a single piece of evidence or a single testimony if the court is convinced that it proves the accused’s guilt beyond a reasonable doubt. Nevertheless, in some jurisdictions special cases were established by statute and case law in which a single piece of evidence cannot suffice to prove a defendant’s guilt and additional evidence is required to support the main evidence. This rule, known as the Corroborative Rule (hereinafter ‘the rule’ or ‘CR’) constitutes a barrier against conviction on the basis of individual evidence, without the judge or jury cautioning themselves against reliance on a single piece of evidence in order to convict the accused. In general, the requirement for additional evidence exists in cases where there is a single piece of incriminating evidence, but there is concern regarding its reliability. In order to reduce the risk of a mistake that will lead to a false conviction (conviction of an innocent defendant), the law requires additional evidence as a condition for conviction. The first purpose of this article is to provide a comparative-descriptive perspective on the CR as practised in Anglo-American and Israeli law. While in continental law a defendant’s conviction is not subject to any requirement for a specific quantity of evidence, in Anglo-American law there is a clear trend to reduce the application of a requirement for additional evidence. Yet in Israeli law, an opposite trend is evident, expressed in increased application of the Corroborative Rule in order to convict the accused. The second purpose of the article is to undertake a critical examination of the theoretical infrastructure underpinning the CR. According to this infrastructure, the justification for the CR is epistemic and relates, as a rule, to testimony whose reliability is, a priori, dubious. Thus the CR is linked to one of the purposes of some of the rules of criminal proceedings, which is to prevent the conviction of innocent defendants. However, at the same time, the CR restricts judicial discretion and harms the prosecutor’s and the court’s ability to ensure conviction of guilty defendants, even in cases where there is a single piece of evidence, which the court trusts. The first section provides a comparison of the use of the CR in English, Canadian, Scottish, American and Israeli law. The second section is devoted to the description of the theoretical infrastructure of the CR, while the third section contains a critical discussion on both the theoretical infrastructure described in the second section and also the requirement for evidential supplements, in general. To conclude the article, I provide a summary of its contents.