This article originally appeared in
 the Alberta Jewish News, Calgary

Look Who’s Not Talking*

As we’ve been learning from the January 6th Investigating Committee, it has become fashionable to “take the Fifth,”.

The legal principle that persons cannot be compelled to incriminate themselves first entered English common law (according to the prevalent theory) in 1637 at the trial of one John Lilburn, accused of importing heretical books. The defendant was initially convicted for his refusal to take an oath or to reply to questions about his religious opinions whose answers would compromise his legal position. However, Parliament subsequently reversed that verdict, concluding that it constituted a violation of Lilburn’s liberty. This likely reflected a more general antipathy to the intrusive oaths and tortures that were being employed in the sectarian disputes of those days.

Although freedom from self-incrimination is often expressed in an impressive Latin maxim “Nemo tenetur seipsiem ;prodere” (no one is required to incriminate himself), it is not attested in ancient or medieval European sources. Lilburn adduced scriptural support from Jesus’s refusal to confess to the seditious statements that were attributed to him at his interrogation. (Perhaps Lilburn assumed that the trial was conducted according to Jewish norms).

The American Fifth Amendment of 1791 states similarly that “no person shall be compelled in any case to be a witness against himself.” It is a privilege granted to witnesses or defendants if they choose to make use of it. In many instances, as we have seen at the January 6th hearings, a decision to “take the fifth” is stigmatized as tantamount to an admission of guilt.

In talmudic jurisprudence, the rule that a person cannot incriminate himself is attributed to the fourth-century Babylonian teacher Rava. It was derived from the premise that close relatives may not testify about each other because they lack objectivity. This assumption was combined with the observation that “a person is his own closest relative.”

The earliest rabbinic discussions appear to accept the rule as normative and do not try to ground it in biblical prooftexts or other authoritative traditions. In cases where the rule is applicable, it is not subject to the choice of the witness or defendant, but rather the court itself is expected to disregard any self-incriminating testimony. Consequently, invoking it does not imply an admission of guilt.

The Talmud invokes the rule principally when assessing the acceptability of witnesses. Normally, a person who has committed a crime or religious transgression, especially one that calls into question their ability to resist bribes or physical threats, would be disqualified from serving as a witness. However, if the only evidence for the witness’s ineligibility stems from his own confession, then the rule forbidding self-incrimination kicks in and his testimony is accepted by the court. According to the prevalent view, even where the confession incriminates another person, it will be accepted with regard to that other person, but not to the witness himself.

Talmudic law applies this rule to sins that involve capital or corporal punishment, but not to monetary claims or civil litigation. In the sixteenth century, Rabbi David Ibn Abi Zimra explained the religious distinction between those two legal domains: although people exercise full ownership over property, this is not true for our lives and bodies, which ultimately belong to the Almighty. Therefore, humans are not authorized to forfeit their lives or the integrity of their bodies by subjecting them to judicial execution or flogging; however, the court can accept an admission of a debt or other financial obligation. Indeed a talmudic maxim declares that “an admission by a litigant is equivalent to the testimony of a hundred witnesses.”

Maimonides understood that the prohibition against a Jewish court’s imposing capital or corporal punishment based on a confession is a categorical decree of the Torah. True, he was aware that the Bible contains examples involving Joshua and David that seem to contradict this rule; but he dismissed these as rare exceptions that were necessitated by political exigencies. Under normal circumstances, however, a Jewish court should not punish or disqualify a person if the only proof of guilt is their confession.

Notwithstanding its status as a divine decree, Maimonides proposed his own psychological explanation for why we should not grant credence to confessions: “This might be a mentally disturbed individual, one of those who suffer from suicidal depression, who jab swords into their bellies or leap from rooftops. It is possible that this person is one of those wretches, and is now confessing to a crime he did not commit in hope of incurring a death sentence.”

In some respects this diagnosis recalls Maimonides’ description of his own prolonged bout with debilitating depression following the death of his beloved brother David in a shipwreck.

There have been attempts to argue that the seventeenth-century English jurists who adopted this proposition did in fact learn it from Jewish sources. Advocates of this theory note that the study of Hebrew language and rabbinic literature achieved considerable popularity at that time among “Christian Hebraists” who found those Jewish texts useful for explicating the New Testament—but were not prepared to openly reveal their reliance on the Talmud.

But times change. In the 1996 verdict of the American Supreme Court that mandated the requirement of “Miranda warnings,” Chief Justice Earl Warren argued for the antiquity of its underlying principle by citing Maimonides as evidence that “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.’”

Overlooking the fact that Maimonides’ Mishneh Torah belongs to the twelfth, century, it is still puzzling how Justice Warren was employing the Jewish precedents. Even if we allow that his “divine decree” comment reflects Maimonides’ view, not his own, it is still perplexing why the learned jurist, consistently committed to separation of church and state, felt obliged to cite the Bible as a source.

I choose to refrain from answering that question.


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My email address is: eliezer.segal@ucalgary.ca

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