Rabbis changed the Law of Self-Incrimination
Virtually all biblical laws were changed. Even Moses altered some commands contained in the first four books of the Torah just before the Israelites entered Canaan under the leadership of Joshua. He did so because his nation was leaving a desert existence where the nation was living in a close confined area, and entering an urban society where they were dispersed with different economic conditions that required new rules. This explains why many edicts in the biblical book Deuteronomy are not the same as those in the earlier books. Many of the changes made life more humane.
Torah directives fit the conditions of the time they were promulgated, but as Maimonides states in his Guide of the Perplexed 3:32, while the Torah had to address the conditions and mindset of the people of the time of promulgation, a people influenced by nations living with or near them, the Torah encouraged more enlightened change. Maimonides offers as an example sacrifices. He writes in 3:32 that God neither needs nor wants sacrifices but only “allowed” them because the Israelite nation was misled and so conditioned that they thought this was the way to show God love; but the Torah made so many restrictions regarding sacrifices – such as what kind of animal could be sacrificed, the time of the sacrifice, how it was done, and much more – that the people ultimately learnt to cease offering them. The same applied to slavery and many more biblical commands.
Self-incrimination is another example. The Bible does not discuss the subject. However, it is clear from several events described in the Bible – such as executions by Joshua and King David – that ancient Judaism allowed criminals to be punished, even executed, based on their admissions of guilt. This practice was discontinued by the rabbis.
The Jewish rule today is somewhat unique – as described by Aaron Kirschenbaum in his 1970 book “Self-incrimination in Jewish law”[1] – because it does not allow criminals to confess, plead guilty, or in any way self-incriminate in court. Alleged criminals are allowed to speak in court to defend themselves. But the rabbis decided that while people can confess in civil cases and that such a confession is equal to “the power of a hundred witnesses,” this was unacceptable in criminal court cases.[2]
Maimonides (1138-1204) offered a psychological basis for the ruling.[3] He explained that the rule was developed to protect the defendant from himself. He may have confessed because of confusion, depression, a longing for death, or some other psychological reason. We might add that American history has disclosed many incidences where suspects confessed against their will as a result of coercion, sometimes so subtle that the suspect did not even detect it.[4]
The Jewish practice today goes beyond the protection of the Fifth Amendment to the US Constitution which only allows a person to invoke a right against self-incrimination. Once invoked, many people suspect invokers as refusing to testify because they are guilty. This situation does not exist under the Jewish system where suspects are not allowed to confess even if willing to do so.
Kirschenbaum discusses the history of the use of confessions since early history. The ancient Greeks and Romans, while considered enlightened, allowed confessions and even encouraged them, as in American jurisprudence today. Early Canon law had trial by ordeal, such as tossing a person over a cliff; if the individual survived he or she was proven innocent. This was later changed somewhat during the period of the inquisition when suspects were forced to confess by intense brutal torture. Both of these practices were discontinued.
[1] See also Samuel J. Levine, “An Introduction to Self-Incrimination,” Loyola Marymount University and Loyola Law School, 2006.
[2] Babylonian Talmud Sanhedrin 9b.
[3] Mishneh Torah, Laws of Testimony 12:2 and Laws of Sanhedrin 18:6.
[4] Such as when police officers lie to alleged criminals.
