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.
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).
