Two Witness Rule: Understanding Its Impact and Application

One challenge for prosecutors or reporters is knowing when you have enough evidence to charge or write. There is no absolute rule, but some version of the “two witness rule” has sometimes been used by federal courts, Woodward and Bernstein, and even the Bible, so it’s a good start and worth knowing!

The basic concept of the “two witness rule” is that a person cannot be convicted solely on the word of a single witness. If all you have is one person’s word against another’s, that is generally not good enough.

Historical Background and Legal Basis for the Two Witness Rule

This rule (or guideline) has a long history – it appears in the Hebrew Bible, which Christians call the Old Testament. In Deuteronomy, Moses sets out the rule for the Israelites in two slightly different formulations:

“On the evidence of two or three witnesses, the death sentence shall be executed; a person must not be put to death on the evidence of only one witness.” Deuteronomy 17:6.

“A single witness shall not suffice to convict a person of any crime or wrongdoing in connection with any offense that may be committed. Only on the evidence of two or three witnesses shall a charge be sustained.” Deuteronomy 19:15.

The Two Witness Rule's Decline in Modern Legal Systems

In modern times, this idea has declined in importance.

In the United States, the “rule” does not hold as a matter of law in most types of criminal cases – one witness theoretically can be enough to support an arrest or a conviction, even when the witness is an accomplice who might have a great incentive to lie. As one court put it, “Even the testimony of a single accomplice witness is sufficient to sustain a conviction, provided it is not ‘incredible on its face,’ or does not ‘def[y] physical realities.”

The Two Witness Rule in Perjury Cases

However, the “rule” still holds explicit for one type of criminal case – perjury cases under Title 18, United States Code, Section 1621 for false testimony in a federal case.

In a 1945 case, the United States Supreme Court noted that the “two witness rule” for perjury cases was “deeply rooted in past centuries” and that its application in federal and state courts was “well nigh universal.” In perjury cases, the rule requires (1) the direct testimony of a second witness and/or (2) other evidence that is independent of the first witness and corroborates the first witness. (Lawyers should note that the rule generally does not apply to prosecutions for other types of false statements, such as prosecutions under Title 18, United States Code, Section 1001).

Practical Value Beyond Legal Requirements

While the “two witness rule” is now minimal as a matter of law, it still has great practical value.

Reporters usually want at least two sources for key assertions, especially controversial points that could be disputed. (I did back when I was a newspaper reporter)

Bob Woodward and Carl Bernstein refer to this in their classic book, All The President’s Men. As the reporters investigated Watergate, they had difficulty getting their sources to confirm what had happened and thus had to be careful about what went into print. “Gradually, an unwritten rule was evolving: unless two sources confirmed a charge involving activity likely to be considered criminal, the specific allegation was not used in the paper.”

If prosecutors relied on a single witness, they would probably have difficulty proving their case beyond a reasonable doubt. This affected my practice as a lawyer in two ways.

First, I generally look for ways to corroborate a witness whenever possible. When I was a prosecutor and met with a witness in a white-collar criminal case, I often would check the data or documents immediately afterward to see if I could corroborate at least part of what the witness said. As a defense lawyer, I’ve sometimes found that prosecutors took their witnesses at face value without checking independent evidence that should have raised significant doubts about whether their witnesses were reliable.

Second, as a prosecutor, I was always trained to have someone with me when I interviewed a witness. This way, if we ever needed to prove what a witness said or did not say, I would have someone there to back me up. Having a “prover” makes it easier to establish what happened and prevents situations from devolving into one person’s word against another’s (it also reduces the potential for situations where I might become a witness myself).

By the way, many TV shows and movies get this wrong about real-life investigations; FBI agents typically work in pairs, in part so that there will be two witnesses, not one, if something significant happens or is said.

The “two witness rule” is now minimal as a “rule,” but it’s still a helpful guide when reading news articles and considering criminal cases.

Be skeptical if you read a news article relying only on one source, especially if the source is anonymous or did not personally observe the events the source describes.

Be very skeptical if you see a criminal case that centers on an event where only the defendant and one other person were present.

The number of witnesses no longer matters as a strict rule of law, but an article or case resting on a single source should have perfect corroboration.

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Stephen Chahn Lee has written about the intersection of pop culture and the law for his entire legal career, most recently in “Modern Detection,” which focuses on lessons drawn from real-life and fictional investigations. Sherlock Holmes dreamed of writing a “textbook which shall focus the whole art of detection into one volume,” Stephen’s articles attempt to fulfill that dream in the modern age. Stephen’s analysis of the Sherlock Holmes stories has been featured in Harper’s magazine, and he was inducted in 2024 as a member of the Baker Street Irregulars.

For further insights on the Two Witness Rule or legal guidance on healthcare fraud defense, please contact Stephen Lee Law.

Sources

• All The President’s Men: Carl Bernstein and Bob Woodward, Chapter 4.

• Department of Justice Summary on the Two Witness Rule: Archived Department of Justice summary.

• Deuteronomy Quotes: New Oxford Annotated Bible, Third Edition.

• Second Circuit Case: United States v. Truman, 688 F.3d 129 (2d Cir. 2012). The court explained, “Even the testimony of a single accomplice witness is sufficient to sustain a conviction, provided it is not ‘incredible on its face,’ or does not ‘defy physical realities.’”

• Supreme Court Case: Weiler v. United States, 323 U.S. 606 (1945).

Follow the Money: Uncovering the Watergate Scandal Through $1300 in Clues

“Follow the money.”

This is the advice given by the confidential source known as “Deep Throat” to Bob Woodward in the movie version of “All the President’s Men.”  Good, solid advice that investigators of financial crimes have been following for years.

To show how this kind of investigation worked, here is a look at how one of the most famous examples of “following the money” unfolded.

Uncovering the Financial Trail

Let’s begin with the money itself.

On June 17, 1972, five men were arrested for breaking into the Democratic National Committee’s offices at the Watergate complex in Washington DC.  They were not typical burglars – they were dressed in suits and ties, and they had 39 rolls of film, bugging equipment, and about $5,400 in $100 bills (about $40,000 in 2022 dollars), along with keys to nearby rooms where even more cash was found. (The picture below shows what was found on one burglar - Bernard Barker aka Frank Carter - when arrested, including two $100 bills and other currency).

Government Exhibit 10F, Watergate Investigation

This raised lots of questions, beginning with, “Where did all that money come from?”

The Role of “Follow the Money”

Fortunately, government investigators were able to track some of the bills backward using serial numbers – each bill of U.S. currency has a unique combination of eleven numbers and letters. This usually is very difficult, but the bills found at the Watergate were new and in sequential order – they had just been delivered by the Federal Reserve Bank less than two months earlier and had just been introduced into circulation.

Serial numbers showed that many of the bills had been withdrawn by one of the five burglars - Bernard Barker (aka Frank Carter, the name he initially gave when arrested) – weeks earlier on May 2 and 9 from a bank account in Florida. 

This much was shown in a trial exhibit from the first Watergate trial, which occurred in early 1973 and involved two defendants (not Barker, who pled guilty).

Government Exhibit 177-A, Watergate Investigation

But that still did not answer the big question about where the money came from. 

That took further work and quickly came out in newspaper articles and a report by the General Accounting Office (GAO), which does non-partisan research for Congress and executive agencies and is now known as the Government Accountability Office.

Most of the money that Barker withdrew matched precisely four checks that all appeared to come from a Mexican lawyer, Manual Ogarrio Daguerre.

Investigative Breakthroughs

The New York Times reported this on July 31, 1972, in an article by Walter Rugaber (“Cash in Capital Raid Traced to Mexico”). According to the article, Ogarrio was in “delicate” health and could not speak, but a family member denied any connection to the checks and denied knowing Bernard Barker.

That could have been the end of this investigative angle, except for Carl Bernstein’s big scoop.

Bernstein had gone to Miami to talk to a prosecutor who was already looking into the burglars’ Miami connections. Upon arriving, he saw Rugaber’s article and thought about trying to fly to Mexico to learn more. No, editor Barry Sussman told him. See if you can find anything more from the prosecutor.

Bernstein dug in and eventually learned about one more check that had been deposited into Barker’s bank account. This was what became known as the Dahlberg check, after Kenneth Dahlberg, to whom the $25,000 cashier’s check (almost $200,000 in 2022 dollars) had been made out.

The Money Trail Deepens

Carl Bernstein passed this information to fellow reporter Bob Woodward, who managed to reach Dahlberg by phone.

Dahlberg admitted to Woodward that he had “accumulated some cash” “in the process of fundraising” and getting a cashier’s check made out to himself. He said that he gave the check-in in early April to one of two people who were high up in President Nixon’s re-election effort.

That’s as far as Woodward and Bernstein were able to get on July 31, 1972, but further investigation was able to follow the Dahlberg check and the Ogarrio checks even further back. Based on the press reports, the General Accounting Office opened its investigation and interviewed Dahlberg and other Nixon campaign officials.

On August 26, the GAO issued its report concluding that the Nixon re-election committee had failed to keep required records and referring the matter to the Department of Justice for possible prosecution.

Chronology of the Investigation

Here is the chronology, as constructed from the articles, the GAO report, and subsequent accounts (and as shown in the chart accompanying this article):

• April 5, 1972. According to what campaign treasurer Hugh Sloan told the GAO in August 1972, Sloan received the checks that were written in the name of Manuel Ogarrio and that the checks were campaign contributions from donors in Texas who wished to remain anonymous.

• April 7. New legal provisions go into effect that require disclosure of campaign contributions from this date onwards.

• April 9. Corporate executive Dwayne Andreas gives $25,000 in cash to Dahlberg in Miami. Dahlberg later told the GAO that Andreas had spoken days earlier about making the gift.

• April 10. Dahlberg has a cashier’s check for $25,000 made out to himself in Florida.

• April 11. Dahlberg endorses the Dahlberg check and delivers it to the re-election finance committee’s chair, Maurice Stans. Stans gives the check to Sloan, who says he gave it to G. Gordon Liddy, along with the four Texas-Ogarrio checks.

• April 20. The Dahlberg check and the Texas-Ogarrio checks are deposited into Barker’s account along with the four checks in the name of Manuel Ogarrio, totaling $114,000.

• April 21 to May 8. Barker withdraws $114,000 in cash, including more than a hundred $100 bills.

• Middle of May. According to Sloan, Liddy provides some of the funds from the five checks to Sloan. Sloan said that the total was significantly less than the total combined value of $115,000. 

• June 17. Barker, Frank Sturgis, Eugenio Martinez, and Virgilio Gonalzes (four of the five burglars) are arrested with new $100 bills in their possession, and more $100 bills are found in a room to which they had a key.

• Days after the robbery. Liddy shreds the remaining $100 bills.

Conclusion: Following the Money’s Impact

Ultimately, “following the money” opened up much more of the Watergate scandal, eventually leading to many charges and convictions that have been overshadowed by other aspects.

Based on my own experience investigating as a reporter and as a lawyer, I’ve written and spoken about how lawyers can use data to conduct better investigations, and I’ve used this Watergate example to discuss one approach. “Track something,” I said. See how things develop over time, and pay attention to the details.  

If you’re doing a healthcare fraud case, track a few patients over time and make sure you understand what happened and why. In one type of case that I handled when I was a federal prosecutor, doing this uncovered additional crimes and defendants and changed how my office handled such cases.

If you’re reviewing emails and find a good email or a particularly significant event, don’t just rely on search terms. Read all the emails surrounding that email and see if you can reconstruct the entire conversation. 

And, of course, follow the money. Where did it come from? What was it used for? And where did it all end up?

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Stephen Chahn Lee has written about the intersection of pop culture and the law for his entire legal career, most recently in “Modern Detection,” which focuses on lessons drawn from real-life and fictional investigations. Sherlock Holmes dreamed of writing a “textbook which shall focus the whole art of detection into one volume,” Stephen’s articles attempt to fulfill that dream in the modern age. Stephen’s analysis of the Sherlock Holmes stories has been featured in Harper’s magazine, and he was inducted in 2024 as a member of the Baker Street Irregulars.

For further insights on the Watergate Scandal or legal guidance on healthcare fraud defense, please contact Stephen Lee Law.

Sources:

• Bernstein, Carl, and Bob Woodward. All the President’s Men. 1974.

• Bernstein, Carl, and Bob Woodward. “Bug Suspect Got Campaign Funds.” Washington Post, August 1, 1972.

• General Accounting Office / Government Accountability Office. “Audit of the Finance Committee to Re-Elect the President.” August 26, 1972.

• Graff, Garrett M. Watergate: A New History. 2022.

• Rugaber, Walter. “Cash in Capital Raid Traced to Mexico.” New York Times, July 31, 1972.

• U.S. v. Liddy Trial Records, Government Exhibits. National Archives. https://www.archives.gov/research/investigations/watergate/us-v-liddy-trial-records-government-exhibits.