Cite as: 529 U. S. 513 (2000)
Opinion of the Court
wick's law and the Treason Clause are different from Article 38.07; with the first two laws, "two witnesses [were] necessary to support a conviction," ibid. (emphasis added), whereas with Article 38.07, the victim's testimony plus corroboration is not "necessary to convict in every case," post, at 560 (emphasis added). But a closer look at Fenwick's law and at the Treason Clause shows that this supposed distinction is simply incorrect. Fenwick's law stated that no person could be convicted of high treason "but by and upon the Oaths and Testimony of Two lawfull Witnesses . . . unlesse the Party indicted and arraigned or tryed shall willingly without violence in open Court confesse the same or shall stand Mute or refuse to plead . . ." See n. 15, supra (emphasis added). And the Treason Clause, of course, states that "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." U. S. Const., Art. III, § 3 (emphasis added). Plainly, in neither instance were two witnesses "necessary to support a conviction," as the dissent claims. Accordingly, its assertion that Article 38.07 "is nothing like the two-witness rule on which Fenwick vainly relied" appears erroneous, as does its accusation that our reliance on Fenwick's case "simply will not wash." Post, at 573.34
The dissent's final argument relies upon Hopt and runs something like this. The "effect" of Article 38.07, it claims, is the same, in certain cases, as a witness credibility rule. See post, at 559, 563-566, 575. However differently Hopt-34 Perhaps one can draw a distinction between convictions based on confessions in open court and convictions based on third-party evidence and the like (though how such a distinction would comport with the language of the fourth category is not apparent). For example, an accused's confession might be thought to be outside of the State's control. But see n. 24, supra. It is not clear at all, though, that the availability of evidence other than the victim's testimony is any more within the State's control than is the defendant's confession.
549
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