Introduction
Of all the principles in classical Jewish law that stand out from a comparative legal perspective, perhaps none is more notable than the ban on self-incrimination in criminal procedures, ein adam mesim atzmo rasha (literally, a person cannot incriminate himself).Footnote 1 Recorded in the Babylonian Talmud and with roots in earlier rabbinic literature, this principle runs contrary to the most basic evidentiary assumptions of other ancient legal systems. While various early modern and modern legal systems instituted and augmented certain important limits on self-incrimination and even underscored the centrality of these limits for the due process of law, their approach remains fundamentally different than the classical Jewish law principle. Only rabbinic jurisprudence incorporates an outright exclusion of criminal confessions.Footnote 2
To be sure, over the centuries the rabbinic ban was increasingly circumvented in practice. Due to changing social conditions that demanded a more flexible judicial procedure, great medieval halakhic authorities found ways to relax the rigid formalism of various rabbinic evidentiary rules. Appealing to the supererogatory powers afforded to the rabbinic court, or equitable procedures authorized under an alternate law of the king, they allowed for substantial elasticity in admitting evidence that was previously excluded. As a result, the testimony of relatives, women, or other disqualified groups was heard; the need for multiple witnesses was waived; and the requirement that witnesses must issue a prior warning to culprits was abandoned. In short, the formalism of classical Jewish law was supplanted by a pragmatic orientation,Footnote 3 which also recognized the need to operate on the basis of a suspect’s confession.Footnote 4 Not surprisingly, this pragmatic mode of jurisprudence has continued to inform legal practice ever since. Thus, after the establishment of the modern state of Israel, even “Hebraic” jurists who sought to incorporate considerable features of Jewish law understood that confessions would remain a necessary component within the Israeli legal system.Footnote 5
Notwithstanding this historical and perennial accommodation (or convergence), the underlying principle has continued to fascinate jurists and scholars. In fact, it has been cited by several US Supreme Court justices for its measured resemblance to the Fifth Amendment of the US Constitution.Footnote 6 Likewise, it has been the subject of judicial analyses among certain Israeli supreme court justices.Footnote 7 From a comparative legal perspective this seems well justified. One can make a compelling case that what captures the essence of a legal system are distinctive doctrines and institutions in their pure form, not ways they have converged with other systems over time.Footnote 8 Even if there has been an undeniable loosening of the rabbinic ban in practice for centuries now, it would be a missed opportunity to leave the ban languishing on the ancient book shelf. For one thing, there has been a notable call to recover some of its potential implications for contemporary practice in which police or prosecutors can be overzealous in eliciting confessions no matter what the cost.Footnote 9 Moreover, leaving the issue of implementation on the side for a moment, this principle reveals much about the core commitments and values of Jewish law, and these may also have enduring lessons for other systems and traditions.
Among traditional commentators, there have been several celebrated explanations of this Talmudic principle. There have also been numerous scholarly studies dedicated to it, including the magisterial study of Aaron Kirschenbaum.Footnote 10 Nevertheless, a fundamental justification for this principle (whether as it was initially conceived or as it crystallized and can be best justified)Footnote 11 or an implication of adopting such a principle has not received adequate attention.
A Talmudic Principle and Its Underlying Rationale
The primary source of the ein adam mesim atzmo rasha principle is a somewhat intricate Babylonian Talmudic passage in tractate Sanhedrin, which I will briefly summarize (the main takeaway is that the Talmud introduces such a principle).Footnote 12 Addressing whether a person is qualified to deliver testimony about a transgressor’s violation in which the witness was also complicit, the Talmud records a debate: R. Yosef, a third-generation Babylonian sage, states that based on the content of his testimony, the witness has incriminated himself and therefore disqualified himself, while a leading fourth-generation Babylonian sage, Rava (whose opinion prevails) demurs: “Rava says: A person is his own relative and a person cannot incriminate himself.”
Because the part of the testimony that pertains to the witness himself is inadmissible, as are all self-incriminating confessions, the witness remains qualified to deliver testimony concerning the transgressor’s violation (the court bifurcates the testimony and admits the part that is admissible).”Footnote 13 From this and other sources,Footnote 14 rabbinic authorities have extrapolated a more sweeping rule that categorically bans a person from offering a self-incriminating confession in standard cases, or from being punished based on a confession. Various other Talmudic passages likewise conform to this principle, and the later commentators and digests of Jewish law treat this as an established rabbinic rule of evidence.Footnote 15
Although the exact origins and scope of this principle has been the subject of much scholarship,Footnote 16 whether this principle traces to biblical, pre-rabbinic, or Palestinian-rabbinic literature,Footnote 17 ultimately this rule took shape. Its underlying rationale and implications is my concern. What is worth noting is that notwithstanding the rule, in certain spheres or circumstances, rabbinic evidentiary regulations do allow for confessions or admissions of interested parties. Still, the general rule is that standard rabbinic criminal law bans confessions.
Among numerous attempts to rationalize or justify the rabbinic ban, two salient interpretations are most frequently cited. In the medieval period, Maimonides formulated the following novel explanation in his halakhic code:
It is a scriptural decree that the court does not execute a person or give him lashes because of his own admission. Instead, the punishments are given on the basis of the testimony of two witnesses. Joshua’s execution of Achan and David’s execution of the Amalekite convert because of their own statements was a provisional ruling due to the exigences of the hour or the law of the king. The Sanhedrin, however, may not execute or lash a person who admits committing a transgression lest he become crazed concerning this matter. Perhaps he is one of those embittered people who are anxious to die and pierce their reins with swords or throw themselves from the rooftops. Similarly, we fear that such a person may come and admit committing an act that he did not perform, so that he will be executed. To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree.Footnote 18
Advancing a rather startling psychological account for why the court cannot rely on the veracity of a person’s confession, Maimonides cautions that a desperate mindset can lead to a willful surrender to an unwarranted punishment.Footnote 19 (Note the currency of the concern about credibility that Maimonides vividly captures. With the increasing prevalence of dubious methods of interrogation and prosecution for soliciting confessions in contemporary practice, many legal commentators have wondered about their ultimate credibility.Footnote 20 In Israeli jurisprudence, Justice Neal Hendel in a 2010 opinion appealed to the classical formulation of Maimonides—emphasizing less the inherently dubious character of a confession and more about its potential for being manipulated and distorted—to buttress the claim that there is much to be skeptical about in a given confession.Footnote 21) At the same time, Maimonides’s placement of this paragraph after underscoring the fixed evidentiary standards of a conventional court and his opening and concluding emphasis that this ban is a formal decree may suggest that the suspect’s credibility is not the sole basis for this ruling.Footnote 22
In a gloss on the above passage,Footnote 23 a later sixteenth-century commentator, Rabbi David b. Zimra, known as Radbaz,Footnote 24 points out that Maimonides’s rationalization does not explain all instances when the ban applies (such as cases of corporal, but not capital, punishment), which is why it ultimately leans on the authority of Scripture. But then Radbaz ventures beyond Maimonides and offers an additional rationale of his own (which he acknowledges is also incomplete). Invoking a theological argument rather than a psychological one, Radbaz posits that from a religious perspective a person does not have title over his own body and therefore cannot willingly sacrifice it or subject it to corporal punishment. In other words, it is the penal consequences that drives this rule.
A Problem of Credibility or Admissibility?
The fascinating explanation of the Radbaz (which bears relevance for modern questions of bodily autonomy)Footnote 25 has interesting support elsewhere in halakhic discourse and has rightly garnered much scholarly attention ever since.Footnote 26 His rationale has nothing to do with the question of credibility, which (at least in part) occupies Maimonides. For the Radbaz, it is not the probative value of a confession that is of concern but its implications. Note that we need not concur with Radbaz’s specific explanation to follow his broader approach that the problem with a confession lies in admitting and operating with such evidence, even if it is reliable.
In fact, other rabbinic teachings (several of which are codified by Maimonides) seem to support the conclusion that a confession is per say credible, in several respects. Consider, for example, the license cited by Maimonides above to rely on a confession based on a provisional ruling due to the exigencies of the hour or under the law of the king. Elsewhere Maimonides elaborates on the flexibility of the procedures under such an exceptional circumstance or in an alternate royal venue, but even an elastic mechanism should not brook relying on specious evidence.Footnote 27 Evidently the problem with a confession is not a substantive concern but one of procedural clearance. According to some authorities, the same is true in the context of Noahide laws, where a court may rely on a confession as grounds for a capital punishment.Footnote 28 In certain circumstances or venues, rabbinic evidentiary rules do allow for confessions of interested parties.
Rabbinic law, moreover, openly acknowledges that in some spheres an admission or confession can be a sufficient, or even optimal, grounds for a judgment. A rabbinic maxim states that in matters of monetary or civil law an admission of an interested party is “tantamount to the testimony of a hundred witnesses,” and in practice it carries even more probative weight.Footnote 29 The formulation is notable because rabbinic law generally operates with the axiom that the testimony of two or more witnesses is of equal weight from an evidentiary perspective (and therefore any conflicting testimony will be canceled out).Footnote 30 Nevertheless, rabbinic law privileges an admission as the ultimate form of evidence. While one can try to distinguish between monetary and criminal matters, it seems more likely that an admission or confession is presumptively credible but still remains inadmissible in the criminal sphere.
Indeed, even in the criminal sphere, if one extends the purview beyond the question of admissibility, one can discern how a reflexive statement is deemed to be a meaningful reflection of a person’s mindset and is assigned significant value. Consider, for example, the astonishing rabbinic rule that establishes that a prerequisite for punishing a culprit with a capital punishment is that in advance of committing a crime (or transgression) he or she acknowledges receiving a prior warning from the witnesses and responds by willingly forfeiting his or her life to such a punishment.Footnote 31 Rabbinic law considers this declaration to be a sober expression of the culprit’s mindset and a reflection of his or her criminal intent.
Another rabbinic regulation pertaining to a subsequent phase of criminal procedure relates more directly to a confession of guilt. After the court announces a capital verdict, the criminal must openly confess his or her crime before being executed at the gallows (which is at least a theoretical possibility under rabbinic law).Footnote 32 Here rabbinic law recognizes the value of a criminal’s confession and mandates it as a necessary element of the penal process. Evidently, a confession is considered to be reliable and meaningful, at least in certain respects.Footnote 33
The above sources seem to indicate that the exclusion of a criminal confession is not a function of its lack of credibility but a matter of inadmissibility.Footnote 34 Some commentators describe this latter alternative as a formal disqualification—that is, a procedural rule simply disallows such evidence—rooted in a scriptural decree (note the similar emphasis in the quotation from Maimonides above).Footnote 35 But even though the formalism of rabbinic evidentiary rules cannot be gainsaid, characterizing a provision as formalism per se is certainly an explanation of last resort. A more appealing account would aim to reconstruct an underlying rationale for this rule of inadmissibility (which is also a desideratum given the difficulties that remain with the respective explanations of Maimonides and Radbaz, notwithstanding their profundity and ingenuity), or at least explore its implications and effects. Here a comparative lens proves especially illuminating.
A Comparative Perspective
In antiquity, the Talmudic principle against self-incrimination ran counter to the approach of classical jurisprudence, which operated under the famous Latin maxim, Confessio regina probationum est (a confession is the queen of evidence).Footnote 36 This adage was incorporated into Roman law—for example, in the fifth-century CE Theodosian Code: “If any person is about to pronounce sentence, he shall maintain such moderation that he shall not pronounce a capital sentence or a severe sentence against any person until such person has been convicted of the crime of adultery, homicide, or magic, either by his own confession, or at any rate by the testimony of all witnesses who have been subjected to torture or to questioning when such testimony is concordant and in agreement, pointing to the same end of the matter.”Footnote 37 In other words, the code assigned superior weight to confessions over other forms of evidence.
Even as the classical approach continued to guide jurisprudence over the centuries, by the early modern period in England another doctrine was introduced that seemed to substantially close the gap with rabbinic law.Footnote 38 Formulated first by Chief Justice Coke,Footnote 39 the common law guaranteed a suspect a right to remain silent. With the adoption of the Bill of Rights, this protection was henceforth enshrined in the US Constitution.Footnote 40 Nearly two centuries later, the Warren Court offered a robust interpretation of this constitutional provision in Miranda Footnote 41 and made it a fixture in the popular imaginary. Notably, that decision cited the passage from Maimonides quoted above as a relevant precursor of the Fifth Amendment:
We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came, and the fervor with which it was defended. Its roots go back into ancient times.Footnote 42
Thirteenth century commentators found an analogue to the privilege grounded in the Bible. “To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree.” Maimonides, Mishneh Torah (Code of Jewish Law), Book of Judges, Laws of the Sanhedrin, c. 18, ¶ 6, III Yale Judaica Series 52–53. See also Lamm, The Fifth Amendment and Its Equivalent in the Halakhah, 5 Judaism 53 (Winter 1956).Footnote 43
Nevertheless, the Supreme Court’s citation of the Talmudic ban (and its biblical underpinnings) should not obscure the profound difference between the constitutional and rabbinic doctrines.Footnote 44 While the Fifth Amendment offers a vital mechanism for a suspect’s protection, it in no ways denies the binding legal weight of his or her confession. On the contrary, a confession is the most certain way of resolving matters of guilt, and almost all criminal procedures are resolved through a confession in one form or another. In this respect, the United States and all other Western regimes are fully in accord with the classical attitude that regards confessions (when credible and lawfully attained) as the ultimate form of proof.Footnote 45 But the rabbinic rule negates this option and establishes a categorial ban on confessions in standard criminal cases.
In elucidating the Talmudic principle, one recent commentator, Rabbi Adin Steinsaltz, essentially characterized it as an extension of the right to remain silent (even though he uses somewhat different terminology).Footnote 46 The constitutional right is a mechanism for protecting a suspect from the prosecutorial insistence that he or she testify about the matter at hand. Extending an absolute ban can be thought of as a way of assuring that a suspect is not subjected to any form of compulsion in this regard. But rather than merging these respective doctrines, in a fundamental sense, notwithstanding their limited affinity, they are animated by different values and concerns.
A key marker of this divergence is the fact that the constitutional doctrine is embedded in the Bill of Rights, and affirms a fundamental right to remain silent. As Robert Cover and other scholars have emphasized, this discourse is largely alien to rabbinic law, which is centered on obligations rather than rights.Footnote 47 Indeed, I would argue that the rabbinic doctrine that bans confessions does not enshrine a protection of a right, but rather grows out of a system of obligations or commitments to justice and the rule of law (interestingly, a recent Supreme Court case related to Miranda warnings may indicate the limits of a rights discourse in this sphere even in the United States).Footnote 48
In order to grasp the fundamental commitments underlying or advanced by the rabbinic principle, one needs to consider its function within the larger mechanics of criminal adjudication in rabbinic jurisprudence. To bring this point into sharper relief, it is helpful to appeal once more to the foil of comparative materials approached through the lens of a couple of penetrating studies of leading legal historians. While at first blush they each address distinct questions of Western legal history that may seem far afield, their works brilliantly illuminate the primary modes of criminal adjudication that were adopted in the West.Footnote 49
In a landmark study of the emergence of judicial torture, John Langbein sets out to resolve what essentially is a historical riddle:Footnote 50 Why was there a dramatic rise in the use of torture in criminal procedures from the middle of the thirteenth century onward (until the middle of the eighteenth century)? Painting in broad strokes, Langbein offers a stunning explanation relating to the primary modes of adjudication in Continental Europe. Up until the thirteenth century, a principal method of administering justice was through an elaborate system of ordeals that offered a foolproof mode of adjudication. But with the Fourth Lateran Council in 1215, ordeals were officially banned by the Catholic Church, which engendered a kind of crisis of how to find an adequate replacement for the irrefutable judgement of God. Here Langbein posits that a striking substitute emerged: the confession of a suspect (and this in turn necessitated an escalating use of torture, in order to elicit a confession). Explaining the underlying rationale behind this replacement, Langbein writes:
“The ordeals purported to achieve absolute certainty in criminal adjudication through the happy expedient of having the judgments rendered by God, who could not err. The replacement system of the thirteenth century aspired to achieve the same level of safeguard—absolute certainty—for human adjudication. Although human judges were to replace God in the judgment seat, they would be governed by a law of proof so objective that it would make that dramatic substitution unobjectionable—a law of proof that would eliminate human discretion from the determination of guilt or innocence.”Footnote 51 Initially relying upon God and later on the suspect, Continental criminal procedure transitioned between two distinct modes of adjudication.
In England, James Whitman grapples with a different historical conundrum that relates to a third mode of adjudication of jury trials that prevailed within the common Law tradition.Footnote 52 In particular, Whitman seeks to uncover the origins of the “beyond a reasonable doubt” formula that became the governing standard for a guilty verdict by a jury in a criminal trial. As Whitman rightly points out, this widely known formula is actually rather obscure in meaning, and often difficult to comprehend for contemporary jurors in practice, which makes one wonder about its provenance. According to Whitman, the historical record traces to a surprising point of origin—a “forgotten world of premodern Christian theology, a world whose concerns were quite different from our own.” As Whitman explains, “the reasonable doubt formula was originally concerned with protecting the souls of the jurors against damnation. … [C]onvicting an innocent defendant was regarded, in the older Christian tradition, as a potential mortal sin. The reasonable doubt rule was one of many rules and procedures that developed in response to this disquieting possibility … intended to reassure jurors that they could convict the defendant without risking their own salvation, so long as their doubts about guilt were not ‘reasonable.’”Footnote 53
In other words, the verdict of the jurors has a disclaimer attached to it denoting that they cannot preclude a remote possibility of error, which is a way of renouncing full responsibility. So the adjudicators hedge in formulating their final decision. For this discussion, what is most relevant is a third mode of adjudication that emerges. Rather than turning directly to God, as it were, or the suspect, justice is mediated by (human) adjudicators (more specifically, jurors), who do not assume full responsibility for their verdict.Footnote 54
In all, this schematic overview of criminal adjudication in the West reveals three different approaches to reaching a verdict: relying on God, the suspect, or a qualified determination by third-party adjudicators. These alternative modes are especially illuminating from a comparative perspective. For all three constitute conspicuous paths not taken by rabbinic jurisprudence.Footnote 55
Paths Not Taken in Rabbinic Jurisprudence
A rabbinic midrash commenting on the verses in Exodus 22:7–8, which instruct litigants to come “before the Lord [ve-nikrav baal ha-bayit el Ha-Elokim],” states “‘before the Lord [that is, God, Ha-Elokim]’—I [may] understand that this means he should inquire of the [priestly] Urim and Thummim, therefore scripture teaches ‘the one whom the judge condemns [asher yarshiun elohim]’—it refers exclusively to a judge [that is, a judge, elohim] who condemns.”Footnote 56
Openly rejecting the notion that litigants appeal to God (the biblical term Lord usually refers to God) for a verdict by way of an oracle from the priestly Urim and Thummim, the midrash instead emphasizes that jurisdiction belongs to (human) judges (who can also be referred to by the term Lord), a viewpoint espoused throughout rabbinic literature.Footnote 57 That the plain sense of the verse that (presumably) speaks of God is reinterpreted as a reference to judges makes this hermeneutic even more deliberate and revealing.
Significantly, a second midrashic tradition also explicates this same clause from Exodus as referring to judges and should be understood as complementing the above midrash: “‘the one whom the judge condemns (asher yarshiun elohim)’ (that is on the basis of the judge, and) not on his own basis.”Footnote 58
Denying culpability based on self-incrimination (the immediate context refers to imposing a punitive fine for larceny),Footnote 59 the midrash insists that a judge, and only a judge, may condemn a suspect. (Notably, this latter midrash assumes that once a suspect’s confession is admitted this would preclude a judge from rendering a judgment.Footnote 60 From a comparative law perspective, whether a confession leads to a dismissal of a trial or still necessitates subsequent adjudication by the court historically divided common law and civil law regimes, respectively.Footnote 61 It could be the midrash is operating with the common law assumption that a confession would obviate the need for a trial. Alternatively, the midrash operates with a realistic calculus that is skeptical of the value of adjudication maintained by civil law regimes following the “queen of evidence” of a confession.)
In other words, the two modes depicted by Langbein are explicitly precluded by the midrash. Administering justice does not authorize appealing to God, nor leaning upon the suspect, but rather calls for judges (and witnesses) to fulfill their mandate (the two counterexamples of the biblical tale of Achan or the matter of the Sotah under rabbinic law can arguably be thought of as a couple of exceptions that prove the rule).Footnote 62
Moreover, according to the rabbis, the judges’ (and witnesses’) assumption of responsibility must be absolute and unqualified, which is all the more surprising given the divine source of the law.Footnote 63 Thus, the duty to implement divine justice is invested in human hands (which is how the “partnership” described in the Tosefta passage below is best understood):
The judges should know … before Whom they are judging and who He is who is judging with them … And the witnesses should know … before Whom they are testifying and who He is who bears testimony with them … as it is written: “Then both the men between whom the controversy is shall stand before the Lord (Deuteronomy 19:17),” and also it is written, “God stands in the congregation of God, and in the midst of judges He judges (Psalm 82:1).” So again it is said concerning Jehoshaphat, “Consider what you do, for you judge not for man but for God (2 Chronicles 19:6).”Footnote 64
Having underscored the divine dimensions of judging (and testifying), the source acknowledges that a person may hesitate to undertake such a daunting responsibility, recalling the reticence of Whitman’s jurors. Therefore, the source concludes by reassuring a judge about the human quality of his anticipated judgment, an emphasis that is markedly different from the jurors’ disclaimer: “And should a judge say, ‘Why do I take this trouble?’ Has it not been said, ‘He is with you in the matter of judgment (2 Chronicles 19:6)’? Your concern is only with what your eyes see.”Footnote 65
In its execution, judging is a fully human endeavor.Footnote 66
A conceptually related mishnaic source about witness testimony provides an even closer analog to the subject matter of Whitman’s analysis. After underscoring the gravity of submitting erroneous testimony concerning a capital matter (“in capital cases the witness is answerable for the blood of him [that is wrongfully condemned] and the blood of his descendants”), the source raises similar unsettling questions to the Tosefta quoted above and offers a telling sequence of answers: “And if perhaps you [witnesses] would say, ‘Why should we be involved with this trouble (i.e., of testifying)?’ Was it not said, ‘He, being a witness, whether he has seen or known, [if he does not speak it, then he shall bear his iniquity] (Leviticus 5:1).’ And if perhaps you [witnesses] would say, ‘Why should we be guilty of the blood of this man?’ Was it not said, ‘When the wicked perish there is rejoicing (Proverbs 11:10).’”Footnote 67
In other words, the source declares, offering testimony (and other related responsibilities) is a duty, and there is no option to decline this assignment or offer a disclaimer. Even if there are mortal consequences to testifying, the execution of justice (including retribution against the wicked) is its own reward.Footnote 68
The Rabbinic Duty to Administer Justice
While these various sources have different shades of meaning, in the aggregate they suggest that the principal religious and social charge to judges and witnesses is to take agency over the administration of justice. Fulfilling this fundamental mandate necessitates that this duty is not shirked—not delegated to God, or foisted onto a suspect, or undertaken with qualifications or caveats—but assumed fully and unequivocally. When it comes to the rabbinic exclusion of a confession, then, it arises from the inalienable responsibilities of the guardians of justice, not as an extension of a suspect’s rights. Shouldering this task serves both the aims of justice and a society committed to its pursuit.
In another context, Langbein focuses on the public good of having certain figures involved in the administration of justice.Footnote 69 For the rabbis, the public good achieved is not a civic education of those figures, but the moral and social good of an entrustment of justice to its proper and designated guardians—proper because judges are (one hopes) learned, (relatively) neutral, and have the capacity both to vindicate and incriminate;Footnote 70 and witnesses also warn a suspect, corroborate his or her mens rea, and initiate a legal proceeding (that is, in rabbinic jurisprudence they are more than a source of evidence, and they play an indispensable role that cannot be bypassed).Footnote 71 But perhaps just as importantly, judges and witnesses are the figures who are designated to execute justice on behalf of the public. Beyond the particulars of any given case, serving in this capacity reifies and expresses a larger public commitment to the pursuit of justice and the autonomy and competence of the public institutions of justice. It is these same values that presumably underlie the biblical injunction that devolves upon the public to “appoint judges and officers in all the gates of your land” (Deuteronomy 16:18).Footnote 72
We can also reformulate this argument in modern jurisprudential terms relating to the institutional dimension of the rule of law, a subject of recent scholarship. Elaborating on a few threads in the writings of A. V. Dicey, Friedrich Hayek and even Joseph Raz, Jeremy Waldron has underscored the salience of the courts for securing the rule of law,Footnote 73 notwithstanding the surprising dearth of (explicit) attention to their role among various early modern and modern theoristsFootnote 74 (an omission that is likewise glaring in the works of classical political thought).Footnote 75 According to Waldron, the integrity of the judicial system ultimately vouchsafes the dignity of litigants.Footnote 76 But rather than centering on the significance of courts for the individual (and, by extension, the potential affront to a suspect’s dignity in (over-) leaning on a confession),Footnote 77 which is the tendency of a discourse that revolves around rights, I suggest broadening the scope of the argument from serving the litigant to the public at large. Establishing autonomous and prominent institutions of justice is vital for achieving and advancing a commitment to the rule of law within society.
Yet even if assuming agency and responsibility for administering justice is a paramount public virtue, one can ask why according to classical Jewish law the courts cannot at least admit a confession as a valid supplementary form of evidence (which, as noted, is the pragmatic orientation of the halakhah as it has taken shape over the ages). Here it is important to consider two interrelated factors. First, from the midrashic tradition quoted above, one discerns that for the rabbis the weight of a confession (as the “queen of evidence” or, in rabbinic parlance, which is “tantamount to the testimony of a hundred witnesses”) is such that it obviates the need for any adjudication altogether, notwithstanding the continental pretenses to the contrary.Footnote 78 Second, it is precisely, if ironically, due to the impact of a confession that it must be excluded altogether. For if a confession can be admitted, it will soon become the dominant mode for conducting criminal procedures, and the principal role of judges and witnesses will be marginalized (a version of this concern was articulated in the Talmudic commentary of Rabbi Shimon Shkop).Footnote 79 A startling confirmation of these factors is the dramatic prevalence of plea bargaining in the WestFootnote 80 (where the marginalization is a direct consequence of the “bargain”)—in both adversarial and inquisitorial regimes—notwithstanding the right to remain silent, a phenomenon I discuss below. Ultimately the integrity of the judicial process—an indispensable ideal of rabbinic jurisprudence—calls for curbing confessions.
Some Critical Reflections on Contemporary Practices
The above analysis offers a deeper understanding of the values that are advanced by the anomalous rabbinic rule that bans a suspect’s confession. Even if the halakhah itself recognizes the need to be more malleable in practice, and eventually admits confessions alongside other forms of evidence, the underlying commitments implicit in the Talmudic ban remain firm, and are as relevant as ever. Administering justice is the unique calling of the court (enabling what Martin Shapiro characterizes as the “triad structure of justice”),Footnote 81 and judges and witnesses are its principal actors.Footnote 82 Moving beyond rabbinic jurisprudence, the above analysis may also offer a critical perspective on certain contemporary practices in the West, including in modern-day Israel, where the legacy of Jewish law has formal doctrinal influence.Footnote 83
Two such practices are plea bargaining and privatization of prisons.Footnote 84 The widespread, if controversial, practice of plea bargaining is a tool that surfaced in capital cases in the United States in the mid-nineteenth century.Footnote 85 Despite waves of criticism, including as recently as the late 1960s and early 1970s,Footnote 86 plea bargaining has become the prevailing mode of adjudicating criminal matters in the United States, accounting for a shockingly high figure of 97 percent of all federal criminal convictions according to one fairly recent tally.Footnote 87 Other modern regimes that initially looked askance on this practice have also increasingly come to rely upon it.Footnote 88 For instance, Israel has overcome its early reticence to plea bargaining to the extent where it accounts for nearly 85 percent of guilty convictions (in district courts).Footnote 89 Even a model inquisitorial legal system such as Germany,Footnote 90 which vocally opposed what is ostensibly an adversarial construct in the past, has rapidly revised its criminal procedure to accommodate much plea bargaining.Footnote 91 While commissions, jurists and scholars have challenged the practice of plea bargaining, it remains a cornerstone of modern criminal procedure.
One especially thoughtful critic of plea bargaining is somebody who has witnessed its effects firsthand, US District Judge Jed Rakoff.Footnote 92 Rakoff has mostly focused on two problematic aspects of plea bargaining. The first is the oft-repeated issue of the reliability of confessions that are extracted under the weight of substantial pressure by the prosecutor. Indeed, the danger of aggressive prosecutorial practices even under a regime that enshrines a right to remain silent has been a repeated concern of both the courts and the legislature.Footnote 93 This concern dovetails with Rabbi Steinsaltz’s interpretation of the Talmudic ban as a categorical measure meant to avert a risk along these lines, and it also echoes the disturbing cautionary tale of hollow confessions extracted by coercive excesses in Langbein’s historical account of judicial torture. Rakoff’s second criticism involves a more elementary concern that reliance on even truthful confessions in plea bargaining undermines the integrity of the judicial system. In Rakoff’s formulation this is because a lack of a trial denies a suspect his or her day in court.
For Rakoff, the crux of the problem is thus a deprivation of a fundamental right. But marginalizing judicial institutions and processes imperils a society’s commitment to justice, apart from whether this infringes on a given citizen’s rights. As Justice Anthony Kennedy said in Missouri v. Frye, “plea bargaining … is not some adjunct to the criminal justice system; it is the criminal justice system.”Footnote 94 What that means is that most of criminal justice is left in the hands of the prosecutor, defense attorney, and suspect (the outsized role of the prosecutor is especially problematic, notwithstanding the important reconceptualization of this function that was offered by Gerard Lynch),Footnote 95 not those who are officially assigned with legal authority; and without the rigors, comprehensiveness, and protections of a trial. Indeed, often the entire plea bargaining process transpires outside the “shadow of trial,”Footnote 96 in a kind of extrajudicial, private arrangement. But because the context is not suitable for private, contractual, or alternative arrangements—it is a public concern (a fortiori from the important critique of settlements on similar grounds by Owen Fiss)Footnote 97—this practice constitutes an abandonment of a core responsibility entrusted by society to the guardians of justice and the due process of law.Footnote 98
Among trenchant criticisms of plea bargaining,Footnote 99Albert Alschuler laments that this practice leads to an “abdication of judicial power” by not requiring judicial supervision over the process,Footnote 100 and Stephen Schulhofer objects to a problem of “agency” in the absence of representation of the defendant and the public.Footnote 101 To my mind, these vital concerns are raised in too narrow a manner. Fundamentally, plea bargaining undermines the integrity of the legal system by abdicating society’s agency over the administration of justice.
While a wholesale reconstruction of contemporary criminal procedure to eliminate plea bargaining is neither feasible nor desirable (given its benefits in terms of efficiency and clemency, among other advantages), the prevalence of this procedure should surely make us balk. The implications of the above analysis are that plea bargaining should be appealed to more selectivelyFootnote 102 and not just because of questions of reliability (ironically, the more controversial Alford pleas in which a defendant maintains his or her innocence but pleads guilty based on accumulated evidence may be a less egregious shifting of the juridical burden).Footnote 103 Moreover, when plea bargaining is resorted to this process should arguably transpire under the auspices of the court.Footnote 104 Finally, other alternative reforms of criminal procedure that better maintain the role and integrity of the court (such as “trial bargaining”) should be contemplated and perhaps pursued.Footnote 105
Another contemporary development in criminal procedure that may warrant closer examination in light of this study relates to administering the punishment of incarceration. An increasingly common practice in the United States is to assign prisoners to privately run facilities.Footnote 106 This disturbing trend, which has engendered a substantial amount of attention and criticism, has been relied upon, if not openly sanctioned, throughout much of the West.Footnote 107 Interestingly, Israel has been a standout regime in challenging this practice, primarily on the grounds of human rights and basic dignity.Footnote 108 Others have raised constitutional concerns on the basis of the non-delegation doctrineFootnote 109 (a doctrine that has increasing traction in contemporary constitutional jurisprudence),Footnote 110 or what Barak Medina has described as the privatization of “core” governmental powers,Footnote 111 because here an executive power of punishing is being problematically delegated to private hands.Footnote 112
Beyond a general objection of delegation, there is a more specific problem with outsourcing agency over the execution of penal justice. A society that undertakes a sober and comprehensive commitment to achieving justice must assume full responsibility for all phases of its administration up to and including the carrying out of punishment (all the more so because of the significance of the public condemnation of a wrongful action, which has been emphasized by Alon Harel).Footnote 113 Accordingly, it is the duty of designated public officials to implement all penal sanctions. Transferring this role to private actors is an abdication of responsibility and erodes the pillars of justice.
Conclusion
The above analysis models one way that gleaning insights from Jewish law has the potential to meaningfully intervene in modern legal discourse. While rules of evidence, criminal procedure, and penology no doubt need to be adapted to meet functional concerns, there is a danger that pragmatic considerations may overwhelm foundational principles of justice. Such principles are at times powerfully rendered within Jewish tradition, with its emphasis on ideals and its secondary interest in practicalities. In the present article I explore an extraordinary principle of classical Jewish law, which advances a commitment to take full agency over the legal domain and avert the temptation to transfer this responsibility. Or to put it differently, an enduring legacy of Judaism, a religion of laws, is the supreme mandate to take charge of the administration of justice.
Acknowledgments and Citation Guide
The author has no competing interests to declare. This article is cited consistent with the Chicago Manual of Style, 17th ed. Supreme Court of Israel cases are cited to the version available through the court’s website, unless otherwise indicated. Citations to Jewish law sources follow the style conventions of the journal. Unless otherwise indicated, all translations are those of the author.
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