Existence of a rule in almost all American jurisdictions tells that a defendant may not be convicted of a crime solely on the basis of a confession. The foundation for this rule lies historically in the convergence of three policy factors: “first, the shock which resulted from those rare but widely reported cases in which the ‘victim’ returned alive after his supposed murderer had been convicted…; and secondly, the general distrust of extrajudicial confessions stemming from the possibilities that a confession may have been erroneously reported or construed …. Involuntarily made…. Mistaken as to law or fact, or falsely volunteered by an insane or mentally disturbed individual •…” and, thirdly, “the realization that sound law enforcement requires police investigations which extend beyond the words of the accused.’
The New York version of the confession corroboration rule, which is similar to the rule followed by a majority of jurisdictions, provides: “A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.” This brief statute and its predecessor have spawned a rather long and complex decisional history. The New York Court of Appeals has promulgated several rules of construction, often strained or logically inconsistent, directed at answering the following questions: (1) which offense must be corroborated? (2) Which elements of the offense must the additional proof corroborate? (3) How much corroboration is required to satisfy the demands of the rule? In People v. Murray, a case which reflects the confusion engendered by the New York rule, the court of appeals failed to reach a majority opinion on the issue of whether a conviction for felony murder can stand when there is no proof, besides the defendant’s confession, of the underlying felony. The Murray opinions, and indeed the entire line of cases on which they rely, indicate a need for a reassessment of the current rule, and perhaps for legislative revision of the rule.
This Note will attempt such a reassessment. First, the history and policy of corroboration and its relationship to other confession doctrines will be discussed.  Then the two major formulations of the corroboration rule in American criminal law will be examined: the corpus delicate version, followed in New York and the majority of states, and the trustworthiness version,” followed in the federal courts and in an increasing number of states. Next, the decisional history interpreting the current New York rule will be analyzed, culminating in the conclusion that the rule is outmoded, vague, and unworkable. The final section of this Note reviews other confession doctrines.
According to Fitzgibbon (1983) a confession is a species of admissions. It is an acknowledgment in express words, by the accused in a criminal case, of the truth of the guilty fact charged or of some essential part of it. Exculpatory statements, denying guilt, are not confessions.(p. 14) Wig more on Evidence, 3rd Ed., Vol. 3, § 821. A “confession” leaves nothing to be determined. It is a defendant’s acknowledgment of his intentional participation in the criminal act. An “admission”, on the other hand, constitutes a mere recital of facts which tend to establish guilt. Thus, an “exculpatory statement” has been described as a statement which tends to justify, excuse or clear a defendant from alleged fault or guilt.
2. Fitzgibbon’s conviction and sentence
The facts, in summary, leading to Fitzgibbon’s conviction and sentence in the United States District Court for the District of Colorado are: Fitzgibbon entered the United States on a flight from Canada and, upon arrival in Denver on March 31, 1977, he tendered to a U. S. Customs official Customs Form 6059-B entitled “Customs Declaration” given to all incoming passengers; the form asks whether the person responding or anyone in his or her party is carrying over $5,000.00 in coin, currency or monetary instruments; Fitzgibbon checked a “no” response to that question, and, in addition, he gave a similar oral response to a Customs official following his arrival at Stapleton International Airport in Denver, Colorado; nothing on Form 6059-B advised Fitzgibbon of the reporting requirements of the Bank Secrecy Act of 1970, Pub. L. No. 91-508, 84 Stat. 1114 (1970) Customs Officer Lockhart, after inquiring of Fitzgibbon orally, received a negative verbal response to the identical question posed on Form 6059-B relative to possession of currency in excess of $5,000.00, together with Fitzgibbon’s explanation that he had been in Canada overnight and had not acquired anything during the trip; Lockhart observed that Fitzgibbon was hesitant and nervous, and thus decided that a secondary examination was required; after Fitzgibbon was taken to a separate room, currency in excess of $10,000.00 was found in Fitzgibbon’s boots when he removed them; after receiving Miranda warnings, Fitzgibbon stated that he had acquired the money in Canada and that he did not want to “hassle” with Internal Revenue over it because a “portion” of it was not his, but rather belonged to an individual residing in New Jersey.
Later on was charged with violating 18 U.S.C. §§ 1001 and 1058, on appeal, he asserted that there was insufficient evidence, as a matter of law, to prove that he intentionally violated these statutes. He argued that the “exculpatory no” exception applied to the negative response to the question posed on Form 6059-B and the identical oral response he made to Customs Inspector Randall. The Court agreed, reasoning that since 18 U.S.C. § 1001 and since 31 U.S.C. § 1058, there must be proof of the defendant’s knowledge of the reporting requirement and his specific intent to commit the crime.
3. CONFESSION CORROBORATION
It indicate at least criminal negligence, a defendant may be convicted of any degree of homicide for which criminally negligent homicide is a lesser included offense, including intentional murder. Once the corroboration of “criminality” is established, the defendant’s confession may supply the sole proof as to any greater degree of culpability. By the same reasoning, corroboration of attendant circumstances contained within the statutory definition of an offense is not required. In New York, for example, heavier penalties are imposed for certain crimes if it is proved that the conduct took place at night, or was accomplished by means of a dangerous instrument. or in concert with another person present. If the defendant’s confession contains facts regarding such aggravating circumstances, most jurisdictions would not require such facts to be corroborated in order to convict the defendant of the higher degree offense. This is so even if the defendant could show that the facts were highly unreliable.
In a word, the corpus delicate version of corroboration is satisfied by proof of result where applicable and the lowest levels of culpability and circumstances associated with the crime charged. This is nothing more than a compromise between a very strict rule, usable by defendants as a technical loophole to avoid conviction, and no rule at all. A requirement that the prosecution corroborate every element and its corresponding culpability63 would be a great burden, especially for those elements which are within the control of the defendant. 64 The prosecution must still prove its case beyond a reasonable doubt.
Corroboration of the lowest degree of the crime shows there was a crime committed and it shows that defendant’s confession is reliable in at least some important details. Moreover, the jury need not give all the facts in the confession equal weight, and will disregard those which are patently unreliable. The foregoing reasons militate against a strict rule and the need for a compromise is evident. A second type of compromise centers on the weight of corroborated evidence required. Jurisdictions vary significantly in the amount of evidence required, ranging from “slight” to “prima facie” to “substantial”. Within these stated boundaries, however, the concept of weight gives considerable discretion to the trial judge, so that in jurisdictions requiring only slight weight, such as New York, a trial judge (or an appellate judge on review) may virtually ignore the corroboration requirement.
The resulting decisional law is very difficult to rationalize. It should be noted that even those authorities who recommend abolition of the rule remark that if it is to be retained, some significant weight of corroboration should be required.7 0
Although the corpus delicate rule appears flexible, it is periodically misapplied, and its emphasis on the elements of the crime charged as opposed to the reliability of the confession has caused several courts and commentators to question the extent to which the corpus delicate version serves its original purposes, and to prefer the alternative trustworthiness version.
4. The Trustworthiness Version
The trustworthiness version of corroboration, which emphasizes the inherent unreliability of some confessions, requires the prosecution to produce evidence corroborative of the confession’s reliability. This evidence need not directly tend to prove the corpus delicate; it is often said that it may in fact be wholly collateral to the crime itself. The corroboration, however, directly relates to the trustworthiness of the important facts contained in the defendant’s statement, whereas the corpus delicate version is more concerned with the elements of the offense. In the federal courts, the rule had its genesis in Daeche v. United States a 1918 conspiracy case involving a federal ant sabotage statute. Judge Learned Hand, after first invoking the corpus delicate rule, ambiguously went on to state “any corroborating circumstance will serve in which in the judge’s opinion go to fortify “the truth of the confession.”  Later cases followed this latter emphasis on truth worthiness, although at least one circuit court strongly supported the corpus delicate version.
The United States Supreme Court adopted the trustworthiness version as the “best rule” in two companion cases decided in 1954, Opper v. United States and Smith v. United States. In Opper, the Court rejected the corpus delicate version, holding that “[I]t is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth.”‘ The opinion stressed unreliability, indicating that an admission, confession, and exculpatory statement all have significant possibilities for error. The case involved an admission, which by definition did not involve every element of the offense charged. In requiring the Government to introduce “substantial independent evidence,” the Court relied on this evidence to serve a “dual function . . . make the admission reliable, thus corroborating it while also establishing independently the other necessary elements of the offense.” 
The essence of the Opper rule is that a conviction cannot stand where any element of the crime charged has been proved only by a defendant’s statement, and no other evidence in the case corroborates the reliability of the essential facts admitted in the statement. This rule allows corroboration by facts which tend to prove the corpus delicate; that is, if the Government makes a sufficient showing of an element of the offense charged by using additional self-incrimination applicable to the states. One must question whether this and other relatively recent developments in the voluntariness doctrine see notes 27-28 supra reduce the extent to which corroboration is needed to prevent police unfairness, see notes 181-92 infra and accompanying text.
5. Confession and Ambiguous Event
In People v. Cuozzo, Is defendant, twenty-five years old and a “mid-grade moron,” confessed that he had raped a nineteen-year-old girl, struck her over the head and left her on the railroad tracks, where her body was mutilated by a freight train. Eleven confessions were made in all, with varying levels of inconsistency with each other and with known extrinsic facts. All confessions were made to the police during what today would be considered custodial interrogation. Finally, the confessions were made three and one-half years after the event; and although the police had investigated the incident at the time it occurred, no “important information” had been uncovered.
The majority opinion extensively reviewed the above matters of reliability. Then, implicitly admitting that the admissibility of the confession was probably within the trial court’s discretion, the opinion proceeded to consider corpus delicate corroboration as a rule wholly unrelated to the truthfulness of the confession, 120 Construing prior corpus delicate case law, the majority concluded that the rule must be strictly applied; the additional evidence, direct or circumstantial, must tend to show “the crime was in fact committed by someone”. In this case, the majority found that the victim’s body did not bear the marks of murder, nor was there a sufficient degree of other circumstantial evidence tending to show “someone’s criminality.” Consequently, the corpus delicate was not corroborated, and the conviction was overturned.
The majority did not discuss evidence introduced at trial of the victim’s healthy state of mind or the timing of events, evidence which tended to eliminate the possibilities of suicide and accident. As presented by the dissent, these facts would appear to support the corroboration of criminality if a minimal amount of weight is sufficient. The majority opinion did note the principle that the corroborative evidence may be “of whatever weight” and need not be “full, direct and positive evidence of the corpus delicate, but the opinion ignored evidence of a type which had been held in other cases to be sufficient corroboration.
Thus, despite the majority’s invocation of a strict corpus delicate rule, the underlying reason for overturning the conviction was the distrust of the reliability of the defendant’s confessions. Unable to find lack of competence or voluntariness, the majority used the corpus delicate rule as a ground for overturning the conviction. The use of the rule, though, depended completely on the lack of a presumption of criminality where the victim is hit by a train; had the body shown any signs of human violence, the conviction apparently would have stood, despite the conclusions as to the unreliability of the confession.
6. The “Confession is the Key” Rule: Reliable
There are many cases in which the event is ambiguous, yet the confession has such indicia of reliability that the corroboration rule appears, as in Badgley, to be merely a technical loophole. To prevent the possibility of letting an obviously guilty defendant go free, the court has devised the “confession is the key“ rule.
This rule allows the corroborative evidence to be proof of circumstances which, although innocent in them, are “nevertheless calculated to suggest the commission of crime, and for the explanation of which the confession furnishes the key.” In effect, weightless evidence is bolstered by the confession itself to yield sufficient corroboration. In one case, the defendant had confessed to starting a fire in his room because of “an urge” and was convicted of arson despite the lack of extrinsic evidence as to the criminal origin of the fire. Sufficient corroboration had been found in a fire marshal’s testimony that the fire had started in defendant’s closet, which lacked wiring or heating fixtures and defendant’s immediate disappearance after the event and subsequent reappearance with dyed hair.
Another case resulted in the conviction of a husband for drowning his wife, despite the lack of “signs of human violence” on the body. The corroboration consisted of evidence that the defendant was seen with his wife near the location at which he confessed that he had drowned her, and that he was involved with another woman whom he had promised to marry and with whom he ran off after his wife’s disappearance. In neither of these cases did the court have adequate proof, under the Cuozzo rule, of “someone’s criminality.” The courts instead weighed evidence of motive or appearance of guilt, and found such evidence, “when interpreted in the light of the confession . . . , strongly corroborative of its truth.”
The confession corroboration requirement is one of the oldest evidentiary rules in New York criminal law. Although the stated reason for the rule is the prevention of convictions for crimes which have not been committed, an analysis of the case law shows that the rule has historically been used to prevent convictions based largely on unreliable confessions. However, the rule is not well suited to this purpose because of limitations inherent in the concept of corpus delicate on which it is based. Three problems have resulted: there has been a promulgation of confusing rules of construction that have questionable links to the issue of reliability; cases which reach reasonable results must do so through circuitous logic; and there are some cases in which the rule cannot be used to test the reliability of the confession.
1. Julian S. Millstein, Confession Corroboration in New York: A Replacement for the Corpus Delicate Rule, 46 Fordham L. Rev. 1205 (1978), retrieved on 2nd July from http://ir.lawnet.fordham.edu/flr/vol46/iss6/6
2. Smith v. United States, 348 U.S. 147, 153 (1954), p. 23
3. Bellicose, Supplementary Practice Commentary, N.Y. Crim. Proc. Law § 60.50, at 145 (McKinney Cum. Supp. 1977-1978), pp. 123-136
4. People v. Reade, 13 N.Y.2d 42, 45, 191 N.E.2d 891, 892, 241 N.Y.S.2d 829, 831 (1963), np
5. Proof of the Corpus Delicate, supra note 1(1923) at 643-44, p.56
6. Blackburn v. Alabama, 361 U.S. 199, 208 (1960), np
 . See generally C. McCormick, Evidence § 158 (2d ed. E. Cleary 1972); 7 J. Vigmore, Evidence §§ 2070-75 (3d ed. 1940); Note, Proof of the Corpus Delicti Aliunde the Defendant’s Confession, 103 U. Pa. L. Rev. 638 (1955) [hereinafter cited as Proof of the Corpus Delictil.
 People v. Murray, 40 N.Y.2d 327, 331-32, 353 N.E.2d 605, 608, 386 N.Y.S.2d 691,694-95 (1976), cert. denied, 430 U.S. 948 (1977) (citations and footnotes omitted).
 Smith v. United States, 348 U.S. 147, 153 (1954).
 N.Y. Crim. Proc. Law § 60.50 (McKinney 1971). The recent Criminal Procedure Law, ch.996, 1970 N.Y. Laws 3117 (effective 1971), completely revised the old Code of Criminal Procedure, ch. 442, 1881 N.Y. Laws 601.
 pt. III infra.
 40 N.Y.2d 327, 353 N.E.2d 605, 386 N.Y.S.2d 691 (1976), cert. denied, 430 U.S. 948
 Bellacosa, Supplementary Practice Commentary, N.Y. Crim. Proc. Law § 60.50, at 145 (McKinney Cum. Supp. 1977-1978).
 pt. II(A) infra.
 pt. H1(C) infra.
 pt. III infra.
 United States v. Fitzgibbon, supra (1983), p. 14
 Codified in scattered sections of 12, 31 U.S.C.( 28 U.S.C. § 2255)
convict under 18 U.S.C. § 100
 requires “knowing” transportation and requires a “willful” violation
 United States v. Granada, 565 F.2d 922 (5th Cir. 1978) which followed United States v. San Juan, 545 F.2d 314 (2nd Cir. 1976).
 e.g., People v. Cantrell, 8 Cal. 3d 672, 680-81, 504 P.2d 1256, 1261, 105 Cal. Rptr. 792, 797 (1973) (en banc); State v. McGuire, 327 Mo. 1176, 1182-84, 39 S.W.2d 523, 524-25 (1931); People v. Lytton, 257 N.Y. 310, 314, 178 N.E. 290, 291-92 (1931). Contra, People v. Allen, 39 Mich. App. 483, 502-04, 197 N.W.2d 874, 884-85 (1972) (Levin, P.J., dissenting), re,’d, 390 Mich. 383, 212 N.W.2d 21 (1973) (dissent adopted per curiam).
 Compare burglary in the second degree, N.Y. Penal Law § 140.25(2) (McKinney 1975), with burglary in the third degree, id. § 140.20.
 Compare assault in the second degree, id. § 120.05(2), with assault in the third degree, id. § 120.00(1).
 Compare robbery in the second degree, id. § 160. 10(l), with robbery in the third degree, id. § 160.05.
 cases cited note 56 supra. Contra, State v. Zwierkowski, 368 Mich. 56, 117 N.W.2d 179 (1962).
 That the rule intrudes into the jury’s province as fact finder is considered a major drawback. A very strict rule would be too great an intrusion. Smith v. United States, 348 U.S. 147, 153 (1954).
 The corpus delicti formulation, however, is not the only compromise possible. The rule proposed in pt. IV infra uses the technique of shifting the burden of going forward to the defendant as a means to accomplish the same result. See notes 207-13 infra and accompanying text.
 e.g., Shuler v. State, 132 So.2d 7, 8 (Fla. 1961); State v. Lutes, 38 Wash. 2d 475, 483, 230 P.2d 786, 790 (1951).
 e.g., State v. Webb, 239 Iowa 693, 703, 31 N.W.2d 337, 342 (1948) (construing a statute); State v. McPhee, 151 Me. 62, 65, 115 A.2d 496., 500 (1955).
 Once the decision to retain the corpus delicate rule has been made, then the amount of independent evidence required should be truly significant, perhaps even amounting to prep on. Durance.” Developments, supra note 19, at 1077
 e.g., State v. Johnson, 31 N.J. 489, 503-04, 158 A.2d 11, 19 (1960), cert. denied, 368 U.S. 933 (1961).
 . 250 F. 566 (2d Cir. 1918).
 The corroboration must touch the corpus delicate in the sense of the injury against whose occurrence the law is directed. … Id. at 571. Note the use of the word “touch,” which underscores many of the issues raised about the corpus delicate version in pt. 11(B) supra
 Id. (emphasis added). The ambiguity derives from the question whether Judge Hand was discussing merely the weight of corroboration within the corpus delicate framework
 348 U.S. 84 (1954); see Comment, Corroboration of Extrajudicial Statements, 7 Stan. L. Rev 378 (1955
 348 U.S. 147 (1954). While Opper states the federal corroboration rule as primarily a question of trustworthiness, 348 U.S. at 93
 348 U.S. at 93. Thus, it would appear that the corroborating evidence must Independently convince a reasonable juror that the facts are reliable
 Opper v. United States, 348 U.S. at 93.
 Defendant did not at first say he raped the victim. He also changed the place where he said he had first seen her, his original statement being inconsistent with the testimony of other witnesses. Several other inconsistencies were noted by the majority opinion. Id. at 89-91, 54 N.E.2d at 22-23.
 The police had arrested defendant on another charge, and when he asked whether they. “had ever found out who killed” the victim, they took him to a barn and questioned him at length. Id. at 88, 54 N. E.2d at 22. 118. Id.
 Defendant had raised on appeal the issue of involuntariness due to insanity. Id. at 95, 54 N.E.2d at 26. But there was medical evidence indicating he “had the capacity to make a valid confession.” Id. at 99, 54 N.E.2d at 27-28 (Conway, J., dissenting). By ruling on the corpus delicate issue, the majority deftly avoided the entire subject of competence
 292 N.Y. at 92, 54 N.E. 2d at 24.
 292 N.Y. at 92, 54 N.E.2d at 24 (quoting People v. Conroy, 287 N.Y. 201, 202 (1941)).
 It would shock common sense to say in the light of the confession that all of [the evidence produced does] not in any degree tend to prove a crime. . . . and that the defendant should be discharged because some other impossible evidence has not been produced.” People v. Brasch, 193 N.Y. 46, 60-61, 85 N.E. 809, 814 (1908).
 . People v. Jaehne, 103 N.Y. 182, 199-200, 8 N.E. 374, 381 (1886).
 It is universally agreed that the corroborative evidence must be independently admissible-that is, competent, not hearsay, and relevant. Proof of the Corpus Delicate, supro note 1, at 659. Often the corroborative evidence is relevant only if the confession is taken as true. In this way, the actual degree of relevance of the external evidence to the crime considered independently may be infinitesimal; yet with its weight bolstered by the facts in the confession, a sufficient degree of corroboration is achieved. See cases cited in Annot., 45 A.L.R.2d 1316, 1333 (1956).
 People v. Brasch, 193 N.Y. 46, 85 N.E. 809 (1908).
 People v. Jeanne, 103 N.Y. 182, 199, 8 N.E. 374, 381 (1886).