45 to the confession in order to establish that the crime actually occurred.240 This, known as the corpus delicti rule, is designed to safeguard against convictions for crimes that have not occurred; rather than to protect against torture. Other US states, and the federal courts, apply the corroboration rule which requires the prosecution to bolster a confession with some other evidence to establish the trustworthiness of the confession. The US Supreme Court has described this rule as ‘requir[ing] the Government to introduce substantial evidence which would tend to establish the trustworthiness of the statement’.241 V.2.2 Heightened judicial scrutiny In a number of the countries studied, the law requires heightened scrutiny of confession evidence by the courts. In France, for example, a ‘confession like any other evidence is left to [the] judge’s discretion’ and can be the sole evidence of guilt if the judge is satisfied.242 Despite this, the admissibility of the confession must be discussed in open trial243 and the judge has to decide according to his or her ‘innermost conviction’.244 Similarly, in South Africa a confession can be the sole evidence for a conviction but due diligence is required by the court and reliance on the confession must be ‘consciously considered and ruled upon’.245 V.2.3 Types of confession Some countries distinguish between confessions given at different stages in proceedings or to different actors within the justice system. In Kenya, confessions are treated as the gold standard in evidence, but only when given to a judge, magistrate or third party of the suspect’s choice (not to the investigating officer).246 In Spain, confessions made before a judge can be relied on as the sole evidence of guilt, provided certain conditions are met,247 but confessions made before a police officer (if not then repeated during the trial) may not be the sole evidence of guilt.248 A confession given in the pretrial phase must be supported by other evidence.249 In some jurisdictions, confessions given in court are regarded as the ‘gold-standard’ because it is thought that they are not subject to the kind of coercion or pressure a defendant may be subjected to when giving a confession in, for example, a police station. However, this does not take into account potential continued coercion placed on the defendant that can come from a range of factors, such as: a defendant who will be delivered back into the custody of his torturers; the psychological impact torture may have on a defendant’s state of mind; and threats of more severe charges or prosecution for additional offences if they do not repeat their confession. As the South African Constitutional Court recognised in the Mthembu case (discussed above in section II.4.2) when considering the repetition in court of a coerced statement by Mthembu’s accomplice originally given after torture in police custody: ‘That his subsequent testimony was given apparently voluntarily does not detract from the fact that the information contained in that statement […] was extracted through torture. It would have been apparent to him when he testified that […] any departure from his statement would have had serious consequences for him. It is also apparent from his testimony that, even four years after his torture, its fearsome and traumatic effects were still with him’.250