Along with admissions of fact from which any criminal responsibility may be inferred, confessions are not admissible as evidence in criminal or quasi-criminal proceedings, for "no man may call himself a wrongdoer" (Sanh. 9b). This rule against self-incrimination developed from the rule that a wrongdoer is incompetent as a *witness, being presumed to be unjust and untruthful (cf. Ex. 23:1). Since some people might admit to misconduct in order to disqualify themselves from testifying, to cure this mischief the rule was laid down that no man can be heard to say of himself that he is so guilty as to be an incompetent witness (Sanh. 25a; BK 72b). The rule was originally derived from the principle that no man is competent to testify in his own favor (Ket. 27a) – his confession being intended to confer the benefit of not being required to testify.
The rule against self-incrimination dates only from talmudic times. Several instances of confessions are recorded in the Bible (e.g., Josh. 7:19–20; II Sam. 1:16; cf. I Sam. 14:43), but these are dismissed by talmudic scholars either as confessions after trial and conviction, made for the sole purpose of expiating the sin before God (Sanh. 43b), or as exceptions to the general rule (hora'at Sha'ah; cf. Maim. comm. to the Mishnah, Sanh. 6:2; Ralbag to II Sam. 1:14). As all instances recorded in the Bible related to proceedings before kings or rulers, it may be that they did not consider themselves bound to observe regular court procedures (cf. Maim. Yad, Melakhim 3:10). Confessions are inadmissible not only in capital cases, but also in cases involving only *flogging, *fines (Rashi to Yev. 25b), or quasi-punishments (ibid.; cf. Resp.Rosh 11:5). Opinions are divided on whether a *ḥerem and public admonitions could be administered on the strength of a confession only.
Varying reasons were given for the rule against self-incrimination: the earliest and commonest is that the biblical requirement of the evidence of at least two witnesses for the condemnation of any man (Deut. 17:6; 19:15) implicitly excludes any other mode of proof (Tosef., Sanh. 11:1, 5). Maimonides adds that melancholy and depressed persons must be prevented from confessing to crimes which they have not committed so as to be put to death (Yad, Sanhedrin 18:6). Another theory was based on the prophet's words that all souls are God's (Ezek. 18:4), hence no man may be allowed to forfeit his life (as distinguished from his property) by his own admission, his life not being his own to dispose of but God's (David b. Solomon ibn Abi Zimra); still another scholar held that if confessions were accorded any probative value at all, courts might be inclined to overrate them, as King David did (II Sam. 1:16), and be guilty of a dereliction of their own fact-finding task (Joseph ibn Migash). A 19th-century jurist (Mordechai Epstein) pointed out that the real difference between civil admissions and criminal confessions was that by an admission an obligation was created which had only to be enforced by the court, whereas in a criminal conviction it is the court which creates the accused's liability to punishment. While it is nowhere expressed, the reason for the exclusion of confessions may well have been the desire to prevent their being elicited by torture or other violent means: it is a fact that – unlike most contemporaneous law books – neither Bible nor Talmud provide for any interrogation of the accused as part of the criminal trial, so that there was no room for attempts to extort confessions.
In the State of Israel
The question of reliance upon self-incriminating confessions has often arisen in the courts. In Cr.A. 614, 5561/80 Al Bahiri v. State of Israel 37 (3) PD 169, Justice M. Elon reviewed Jewish law on this question, stating that "Jewish law originally maintained that a defendant's self-incriminating confession was absolutely inadmissible, pursuant to the rule that 'since a person is related to himself, no one may incriminate himself [lit. 'a person cannot make himself out to be a wrongdoer]' (Yev. 25b). The confession of a crime was absolutely inadmissible, whether the accused confessed outside or in court, and even if there was corroboration. One could not be convicted unless there was sufficient evidence and testimony to the commission of the crime. During the course of time, with the changing needs of the times and of society, various changes were made towards easing the methods of proof in criminal law. Certain witnesses were deemed qualified who had previously been legally disqualified; and circumstantial evidence was held sufficient if it was strong and substantial. Within the framework of these major changes, it also became possible to convict a defendant on the basis of his confession (Resp. Rashba IV, 311), but the qualification was established that a defendant's confession alone was not sufficient unless, in addition, there had to be 'some measure of corroboration' to support the veracity of the confession: In such a case, it is the practice to accept the defendant's confession even in a capital case where there is no clear proof, in order that what he says, 'together with some measure of corroboration, may clarify what occurred' (Resp. Ribash, 234)." The reluctance to rely upon self-incriminating confessions was due to the concern expressed by Maimonides that such a defendant may be subject to "inner pressure" to blame himself for a crime that someone else has committed: "Perhaps he is among the melancholy and depressed who wish to die [and] who thrust swords into their bellies or throw themselves down from the rooftops. Perhaps such a person will come and confess to a crime that he did not commit, in order that he may be killed" (Maim. Yad, Sanhedrin 18:6). In this case, one of the issues decided was that a failure to testify in court cannot be considered the "something in addition" which, added to the extrajudicial confession, suffices for conviction, the reason being that the very "inner pressure" that renders a confession unreliable without corroboration, may well be the basis for the defendant's unwillingness to testify in court. Moreover, in keeping with Jewish legal principles as they developed over time, the court suggested that the law be amended and that the "something in addition" required only in regard to extrajudicial confessions be also required in regard to confessions made in court. Justice Elon added that the danger of convicting an innocent man on the basis of his confession is very worrisome, and in this regard the principle was stated, "it is better and more desirable that a thousand guilty persons go free than that a single innocent person be put to death" (Maim. Sefer ha Mitzvot, Neg. Commandment, 290).In an earlier case that reviews Jewish law's stringent evidentiary requirements and mentions the above principle of Maimonides (Cr.A. 641, 622, 543/79 Nagar et al. v. State of Israel, 35 (1) PD 35 113), the question arose as to whether a conviction for murder could be based upon circumstantial evidence alone or upon an extrajudicial confession, supplemented by "some-thing in addition." Here Justice Elon outlined the Jewish legal sources as they developed over time relating to circumstantial evidence, the admissibility of testimony of relations and of self-incriminating confessions, and showed, based on the responsa of Rashba (IV, 311) and Ribash (251, 234), that self-incriminating confessions, though inadmissible alone, could be admissible if supplemented by "something in addition." In a case at first instance in the Beersheba District Court (Cr.F. 76/93 State of Israel v. Suleiman El Abid), Judge N. Hendel, in a minority opinion, examined the sources of Jewish law relating to circumstantial evidence and the inadmissibility of self-incriminating confessions, linking this question, following U.S. Judge Douglas' statement that the Fifth Amendment (against self-incrimination) "is part of our respect for the dignity of man," with Israel's Basic Law: Human Dignity and Freedom, which is intended "to anchor in a basic law the values of the State of Israel as a Jewish and democratic state." Upon this foundation, the court discussed the admissibility of confessions in keeping with Jewish values, extensively examining the sources of Jewish law (Maim. Yad, Sanhedrin 18:6; Resp. Ribash, 233; Resp. Rashba III, 399; Radbaz on Sanh. 18, and R. Simeon Shkop on Ket. 18b, 5) that provide different reasons for the inadmissibility of self-incriminating confessions. The Ribash, in view of Jewish law's reservations as to ascetic behavior and its opposition to self-inflicted harm, questions the motive of one who wishes to confess; stating that it need be closely examined in case it is due to a self-destructive urge (cf. Maim. Yad, Sanhedrin 18:6) or a misplaced wish to placate the conscience. The Radbaz states that such a confession is ineffective as "his soul does not belong to him but rather to the Holy One, blessed be He" (see Ez. 18:4); thus a confession in regard to what is not his is of no effect. R. Shkop's reason for the inadmissibility of confessions is the danger that too great a weight would be ascribed to them since they seem to constitute strong evidence, with the result that the court would be dazzled and not reach a balanced judgment. However, over time in certain Jewish communities, the pressure of circumstances necessitated that confessions be admitted within the framework measures of exigency (Resp. Rashba III, 399) with the qualification that "something in addition" must supplement them (Resp. Ribash, 233). Finding the case exclusively based upon the defendant's confession, Justice Elon suggested adopting Jewish law's careful approach and in the absence of clear corroborative evidence ruled that El-Abid be acquitted. The difficulty of the case is apparent in its development: initially El-Abid was convicted (by majority) for murder and rape; on appeal to the Supreme Court, only the rape conviction remained (by majority), while in a further hearing, only the murder conviction was upheld (by majority). In another case (Cr.A. 168, 115/82 Moadi v. State of Israel, 38 (1) PD 197), Justice Elon held (257–65) that the rationale behind the requirement that a confession must be "voluntary" is solely to ensure the reliability and truth of the confession and that a judgment rendered in disregard of this would be contrary to the judge's duty to render a judgment that is "true to its very truth" (din emet le-amito) (Shab. 10a; Er. 54b; Meg. 15b; Sanh. 7a, 1 11b).
[Menachem Elon (2nd ed.)]
ET, 1 (1951), 88–90, 225–7, 266; 7 (1956), 372; 8 (1957), 432–5; H. Cohn, in: Journal of Criminal Law, Criminology and Police Science, 51 (1960–61), 175–8; H.E. Baker, Legal System of Israel (1968), 226. ADD. BIBLIOGRAPHY: M. Elon, Ha Mishpat ha-Ivri (1988), 1:568f; 2:1465; idem, Jewish Law (1994), 2: 698; 4;1740; idem, Jewish Law (Cases and Materials) (1999), 206–12; A. Kirshenbaum, Harsha'ah Aẓmit ba-Mishpat ha-Ivri (2005).
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