The ‘Corroborative Rule’ from a comparative and critical perspective

AuthorGuy Ben-David
Published date01 July 2019
Date01 July 2019
Subject MatterArticles
The ‘Corroborative Rule’ from
a comparative and critical
Guy Ben-David
Netanya Academic College, Netanya, Israel
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 con-
viction 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
Corresponding author:
Guy Ben-David, Netanya Academic College, 1 University Street, Netanya, 42365, Israel.
The International Journalof
Evidence & Proof
2019, Vol. 23(3) 282–298
ªThe Author(s) 2019
Article reuse guidelines:
DOI: 10.1177/1365712718824123
in the second section and also the requirement for evidential supplements, in general. To
conclude the article, I provide a summary of its contents.
Corroborative rule, evidence, quantity of evidence, supplementary evidence, supportive
The Corroborative Rule from a comparative perspective
The word ‘corroboration’ means support, confirmation or reinforcement. In relation to the law of evidence, it
refers to the requirement in any rule of law or practice that certain kinds of evidence should be confirmed or
supported by other independent evidence, in order to be sufficient to convict a defendant of a criminal offence.
The desirability of corroboration in certain cases arises from the perception that certain kinds of
evidence are inherently suspect, either because of the nature of the witness himself (e.g. a young child) or
because of the likelihood that the witness may have some purpose of his own to serve in giving evidence
against the accused (e.g. an accomplice) (Glover and Murphy, 2017: 278).
The CR developed in English common law in the 18th century in order to cope with the single
evidence of a witness, when there was a high probability that it was unreliable.
The difficulty involved
in the establishment of factual findings in reliance on a single piece of evidence or testimony is also
expressed in Hebrew Law, which does not allow an individual to be convicted according to a single piece
of evidence except in exceptional cases, since it is argued ‘One witness is not enough to convict anyone
accused of any crime or offence they may have committed. A matter must be established by the
testimony of two or three witnesses.’
In the following discussion, I explain the application of the CR
in English, Scottish, American and Israeli Law and the distinctions between them.
The Corroborative Rule in English law
Until 1994 there were certain exceptions to this rule, which were anchored in statutory law and in case
law. Those exceptions related to a single piece of evidence given by the complainant regarding a sex
offence (Malek et al., 2013: 428–432), to a single piece of evidence given by an accomplice testifying for
the prosecution (Malek et al., 2013: 432–433), and also to a single piece of evidence given by a child
who was not sworn in by the court (Glover and Murphy (2017: 278; Malek at al. 2013: 425).
In each of
1. Glover and Murphy (2017: 278). ‘Corroboration is evidence which confirms a witness’s testimony making the testimony more
likely to be true’. RvC (B) (1993), 80 CCC (3d) 467, at 473 (Ont. CA). The word ‘corroboration’ in itself has no special legal
meaning. Its source can be found in the Latin word ‘robur’ and the English word ‘robust’, which means ‘to strengthen’. See Hill
et al. (2009: 31–32).
2. The development of this rule focused mainly on the testimony of a crown witness. In 1744, English Common Law stipulated a
requirement for an evidential supplement of the ‘corroborative’ type in order to determine factual findings to convict an accused
in reliance on the sole evidence of the crown witness. The assumption was that it would otherwise be impossible to cope
optimally with the fear of perjury. The demand for assistance in order to sentence according to single testimony of a crown
witness spread to other states, including the USA, Canada, South Africa and Australia. In contrast, the concept of a crown
witness was not accepted by the Continental Law approach, because of the inquisitor procedure practised in their legal method.
See Halevi (2013: 596–597). See also Langbein (2005: 165).
3. Deuteronomy 19:15. See also Deuteronomy 17:6; Numbers 38:30. Halevi (2013: 591).
4. For example RvG (A) [2000] 1 S.C.R. 439 at 453–454; RvVetrovec (1982), 67 CCC (2d) 1 (SCC) at 8; RvZito (1994), 94
CCC (3d) 477 at 478.
5. Glover and Murphy, 2017: 280. Also see Davies vDPP [1954] AC 378; Rex vBaskerville [1916] 2 KB 658 (CCA). This rule,
which obliges the court to instruct the jury regarding the risk involved in relying on a single testimony of a child who has not
been sworn in by the court, was anchored in the stipulation of s. 38(1) of The Children and Young Persons Act 1933 (Eng.).
Ben-David 283

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