The History of “Corroboration”

Clinical Legal Education offers the opportunity to learn on so many levels.  In a recent post Ilana Friedman talked about some big issues in criminal justice and criminal defense practice in America. 

In this clip, Cheryl Thill talks about a more technical matter, the requirement in New York law that every misdemeanor charge be supported by a sworn statement from a person with first hand knowledge.  Known in courthouse parlance as "corroboration," this procedural step looms large in our practice in New York County Criminal Court and listening to Cheryl's discussion reminds me how many important legal concepts are embedded in this simple procedural requirement.

The requirement for first person knowledge, as opposed to second hand or hearsay evidence, reflects the long settled distrust of hearsay evidence in Anglo-American law and our broader concern about both the quality and quantity of evidence used to prove a point.  The ancient common law had concerns about hearsay evidence - rules regulating hearsay began to firm up in the late 17th Century, developed through the 18th and took a form familiar to contemporary lawyers by the early 19th Century.

In our cases, New York State Law requires that the state file a charging document with every element of the offense supported by evidentiary facts sworn to by a person with firsthand knowledge.  Person number 1 repeating what person number 2 said about what he or she saw is not good enough.

The legal obligation for the prosecutor to support a criminal charge with some evidence (whatever the quality of that evidence must be) in order to bring a case on for trial is older still, with the grand jury (which must pass on whether there is sufficient evidence to bring a felony case to trial) traceable to 1166, just 100 years after the Norman Conquest of England.  We have long been concerned about the burden of being brought to trial, even if one is acquitted, and we fear the power of an accuser to simply accuse without any substantial proof. 

Cheryl also talks about the time limits within which the prosecutor must file a corroborating affidavit. Time limits are another ancient feature of criminal law, with statutes of limitations, constitutional speedy trial requirements and statutory speedy trial rights each having long pedigrees in Anglo-American law. Time limits loom very large in our practice and in many other busy lower criminal courts in America, where there is often significant pressure to process a large number of cases within strict time limits. 

Although Cheryl is talking about a rather technical point of New York State Criminal Procedure, she is also tapping into a rich vein of learning and ancient tradition in our law.  One of the things I so enjoy about being a lawyer who teaches and practices in a legal clinic is the opportunity to see the law from many different perspectives - in this case from the ground and technical detail up to the heavens and the most abstract and ancient of concerns.

-- Ian Weinstein

Fordham, Law School, Clinical Legal Education, Law Clinic, Pro Bono Work, Legal Education, Legal Pedagogy, Teaching Law, Student Lawyers, Law Student

 

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