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Plead the Fifth

Friday, August 25, 2017 - 8:48 AM

Plead the Fifth

To “plead the fifth” is to evoke the fifth amendment of the United States Constitution[1] which protects against an individual being forced to testify against himself.

Legal protection against forced self incrimination is anything but obvious; it did not appear in Roman law or in early Common law. Historically it was common practice to torture defendants until they would confess. 17^th century England saw the beginning of the rejection of forced confessions, the shift in attitude and practice made its way across the Atlantic and ultimately became part of the Bill of Rights.

In 1966, in the landmark case of Miranda v. Arizona, the United States Supreme Court expanded this right and ruled that a statement of a defendant who is in police custody can be admitted as evidence at trial only if the defendant was aware of, and explicitly waived, his right to remain silent. To comply with the ruling, Police officers are required to tell the defendant that he or she has the right to remain silent.

The Torah's perspective on self incrimination is astonishing.

Not only does the Torah disqualify a forced confession, but the Torah goes much further; even if a person confesses voluntarily, the court cannot use the testimony against him.

At first glance this seems very difficult to understand: after all, it seems that a voluntary confession is the most powerful evidence.

There are multiple ways of understanding the Torah’s view of self incrimination. We will focus on three perspectives, one legal, one psychological and one mystical.

The Legal Explanation

The Talmud[2] offers two legal interpretations as to why we reject self incriminatory testimony. The first is the opinion of the Talmudic sage Rav Yosef and it is based on a legal doctrine that states that the testimony of a wicked person is not admissible in court because the wicked person is not trustworthy.

Now, if a person enters the courtroom and confesses to murder, he is obviously wicked. Had he offered testimony on behalf of or against anyone else we would not be able to accept his testimony, as he is clearly wicked. We therefore cannot accept his testimony against himself either, if we believe his self incriminatory testimony then we must accept that he is a wicked person whose testimony is not trustworthy.

Rava, one of the most famous of Talmudic sages, offers an alternative explanation as to why we reject self incriminating testimony even if a person offered the confession voluntarily. This interpretation is based on the Biblical law that a person cannot testify about his relative.

Rava explains that “a person is his own relative”. Rava argues that if the Torah rejects a relative's testimony because the relative is close to the subject about whom he is testifying then the same must apply to the one testifying against himself, as “he is his own relative”. He is also “close” to the subject he is testifying about, namely himself, therefore, we must reject his testimony.

Psychological Explanation

The Talmud’s explanations on why we reject self incriminating evidence, although logical from a scholarly perspective, it is undoubtedly counter intuitive. Maimonides therefore offers a revolutionary psychological explanation:

The Sanhedrin (high court)… may not execute a person who admits committing a transgression, lest he have 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.[3]

It was, and in many cases still is, very hard to imagine that someone would confess to a crime they did not commit; therefore studies show that juries consider a confession as the most conclusive evidence of guilt. Maimonides argues that there can be many unanticipated reasons why an innocent person would confess.

In recent years science has been confirming the Torah’s position on confessions. In recent years there has been an effort to overturn convictions on the basis of DNA evidence. After studying the Torah’s perspective, it should be no surprise that about 25 percent of 240 wrongful convictions overturned by DNA evidence in the U.S. have involved some form of a false confession.[4] We are beginning to discover that people will confess for many reasons; psychological coercion is the most common, yet there have been many cases that prove the basic point of Maimonides: not only is a confession not the ultimate proof of guilt, as most people believed up until relatively recently, but it is (by itself) no proof at all.

Mystical Dimension

The mystical explanation to the law is gleaned from contrasting the law of confession about a capital crime, which we reject, to the confession of a monetary obligation, which we accept, as the Talmud explains (regarding a monetary confession): ”One’s own admission is equivalent to the testimony of one hundred witnesses.”

Why the difference? Why would we accept testimony against one’s self in monetary cases if we reject it in criminal cases? Are we not concerned about monetary injustice?

The answer is that a person has the right to give a gift to whomever he wants; and once a person declares that he will give a gift he must do so. Meaning, a person can obligate himself to pay even if there is nothing obligating him to so – other then his own voluntary commitment.

The Radvaz, in his commentary on Maimonides, explains that one's money belongs to himself, thus he is able to choose to gift it to anyone he would like. Therefore we accept a person's testimony that obligates him to give money to someone else, because it is within his right to spend his money as he pleases. Life, however, does not belong to the person. It is given to us loan from G-d, it isn’t ours to forfeit.

This, according to the Torah, must be our approach to life: our body, our soul, and therefore life itself, is a gift from G-d, given to us to as a loan, in order to accomplish the purpose of our creation.

^{^[1]}“nor shall be compelled in any criminal case to be a witness against himself”. Fifth Amendment, United States Constitution

^{^[2]} Sanhedrin 9b.

^{^[3]} Rambam, Laws of Sanhedrin, Chapter 18, Halacha 6.

^{^[4]}www.innocenceproject.org/causes/false-confessions-admissions

Choice?

Friday, August 18, 2017 - 8:21 AM

Choice?

In the 20th century, as brain scanning technology was rapidly developing, many scientists began to question, and ultimately reject, the notion of free choice. Looking at brain scans they argued that everything the human being does is determined by the physical properties of our brains.

As a recent article put it:

we no more will it to operate in a particular way than we will our heart to beat. The contemporary scientific image of human behavior is one of neurons firing, causing other neurons to fire, causing our thoughts and deeds, in an unbroken chain that stretches back to our birth and beyond. In principle, we are therefore completely predictable. If we could understand any individual’s brain architecture and chemistry well enough, we could, in theory, predict that individual’s response to any given stimulus with 100 percent accuracy.[1]

What’s most interesting about this argument is that it is as old as human history. In the first story in the Torah, in the story of Adam and Eve in the Garden of Eden, we discover that the first to make the claim that a person has no free choice was none other than the serpent.

The serpent engaged Eve in conversation and planted within her a morally dangerous idea. As the Torah tells us:

Now the serpent was cunning, more than all the beasts of the field that the Lord God had made, and it said to the woman, "Did God indeed say, 'You shall not eat of any of the trees of the garden?'" And the woman said to the serpent, "Of the fruit of the trees of the garden we may eat. But of the fruit of the tree that is in the midst of the garden, God said, "You shall not eat of it, and you shall not touch it, lest you die.'"[2]

Reading the conversation between the serpent and Eve the most important word is the word that does not appear. If we turn back to the verse that describes how G-d forbade the fruit if the tree of Knowledge the Torah says:

And the Lord God commanded man, saying, "Of every tree of the garden you may freely eat. But of the Tree of Knowledge of good and evil you shall not eat of it."[3]

There is a crucial difference between the verb the Torah employs to describe the prohibition of the tree of knowledge and the verb the serpent employes. The Torah uses the verb commanded - “And the Lord God commanded man” - while the serpent uses the verb said - “Did God indeed say”. While it is easy to overlook this seemingly subtle change, in fact, the serpents chief claim lies within this change.[4]

What is the difference between “commanded” and “said”? Command implies free choice, for there is no meaning in issuing a command about something that the recipient of the commandment has no control over. “G-d said”, by contrast, does not imply free choice. In the story of creation, all through the first chapter of Genesis, the Torah uses the phrase and “G-d said” - “and G-d said let there be light”, “and G-d said let there be a firmament” - to describe the creation of natural phenomena that have no free choice at all. When deliberately substituting “G-d said” for “G-d commanded”, the serpent was telling Eve that the human being is essentially no different than an animal, that she too, like the serpent and like the rest of nature, doesn't have choice regarding her actions. When the serpent said "Did God indeed say, 'You shall not eat of any of the trees of the garden?'" he is asking Eve did G-d indeed say, did he create you to naturally be attracted to and unable to consume the fruit of the tree? Eve, accepted the terms imposed by the serpent and in all her discussion she does not refer to the prohibition as a commandment. She does not tell the serpent clearly and explicitly that the human being is indeed unique for he/she was created in the Divine image and blessed with the potent ability to choose freely.

Adam and Eve succumbed to temptation and ate the forbidden fruit; yet the underlying mistake was succumbing to the idea that they were just like the serpent. That the human is no more than a sophisticated animal trapped by its instincts.

In the midst of Moses’s final words to his beloved people, Moses repeatedly emphasizes the idea that is the foundation of any code of morality, namely, that we were endowed by our creator with the freedom to chose our own path, thus we are responsible for both our failings as well as our triumphs.

As Moses says in the opening phrase of this week’s portion:

Behold, I set before you today a blessing and a curse.[5]

The choice is yours.

^{^[1]}theatlantic.com /2016/06/ there’s no such thing as free will

^{^[2]} Genesis 3:1-3.

^{^[3]} Ibid. 2:16:17.

^{^[4]} See Malbim to Genesis 3:1.

^{^[5]} Deuteronomy 11:26.

Two Tablets

Friday, August 11, 2017 - 12:51 PM

Two Tablets

The Ten commandments are the foundation of the Torah. They encompass the most important principles of the Torah and therefore, unlike the rest of the Torah that was transmitted through Moses, the entire Jewish people heard the Ten Commandments spoken directly from G-d himself.

The Ten Commandments were inscribed on two tablets, each tablet containing five of the commandments. In this week’s portion, while retelling the story of Sinai Moses emphasizes that there were two tablets: “And it came to pass at the end of forty days and forty nights, that the Lord gave me two stone tablets, the tablets of the covenant.” The question arises: why the need for two tablets? Couldn't Moses have inscribed all ten commandments on one tablet?

The Torah contains two general forms of Commandments: 1) the Commandments that relate to the relationship between man and G-d, such as loving G-d, fearing G-d, not mentioning His name in vain, etc. 2) and Commandments that relate to the relationship between man and his fellow, such as the Commandment to love a fellow as one’s self, and various forms of charity. Examining the ten commandments we find that they contain both categories of commandments. In fact, the first five are between man and G-d, and the second five are between man and fellow man.

Had all the Ten Commandments been written on one tablet, the only way to read them would be vertically from top to bottom, which would lead to the mistaken impression that somehow there is a hierarchy between the categories, that somehow G-d is more concerned about how we treat Him than about how we treat our fellow person.

The Torah therefore emphasizes that the commandments were inscribed on two tablets, which allows the commandments to be read not just vertically but also horizontally, thus the first commandment, “I am the L-rd your G-d”, which was inscribed on top of one tablet, and the sixth commandment, “You shall not murder”, which was inscribed on top of the other tablet, are both on the same level.

In fact, when we read the Commandments horizontally, we see that the column of man’s responsibility to G-d and the column of man’s responsibility to fellow man share the same theme:

1. I am the L-rd your G‑d. 6. You shall not murder:

Murder is a terrible sin specifically because “I am the L-rd your G-d” and every Human being was created in the Image of G-d. Thus taking a human life is denying the sanctity of G-d.

2. You shall have no other gods before Me. 7. You shall not commit adultery:

The binding theme between these two commandments is the theme of loyalty. We must be loyal to are relationship with G-d and to our sacred relationship with our spouse.

3. You shall not take the name of the L-rd your G‑d in vain. 8. You shall not steal:

Stealing from someone else compromises our honesty and will inevitably lead to swearing falsely in G-d’s name in order to deny the theft.

4. Remember the Sabbath Day, to keep it holy. 9. You shall not bear false witness against your neighbor.

By resting on Shabbat we testify that G-d created the world in six days and rested on the seventh, thus celebrating Shabbat is an act of testimony.

5. Honor your father and mother. 10. You shall not covet.

Coveting something that belongs to another person implies that one believes that he does not have what he needs, and he feels that in order to achieve happiness and meaning he must possess that which belongs to someone else. The truth however is that meaning in life and happiness comes from celebrating the talents, personality, possessions and circumstances we are blessed with. Honoring the parents who brought us into the world implies that we accept that the person we are, the G-d given talents we possess, our unique life story, being born into a specific family at a specific time, is exactly the person we need to be in order to fulfill our purpose on this earth.

Hear the Oneness

Friday, August 4, 2017 - 1:39 PM

Hear the Oneness

To experience life on this earth is to experience opposite extremes. There are moments of creativity, love, joy and meaning, while there are other moments of frustration, pain, sadness and confusion. Likewise, when we look into our hearts we also find opposing drives: the selfish and the selfless, the animalistic and the G-dly, the inclination for good and the inclination for evil. These extremes are a source of tension that, to one degree or another, each of us experiences.

What advice does Judaism offer on how to manage these tensions? What insight does the Torah provide to help us make it through the times of darkness and confusion? In this week’s portion Moses speaks the phrase which, perhaps more than any other, captures Judaism's heart and soul, as well as relaying its message on how to navigate the stormy sea we call life.

Moses tells us that despite the tension we feel every day, despite the world being divided and fractured - as expressed so poetically by King Solomon in Ecclesiastes: “there is a time to give birth and a time to die; a time to plant and a time to uproot… A time to weep and a time to laugh; a time of wailing and a time of dancing… A time to love and a time to hate; a time for war and a time for peace”[1] - despite all of this, the true essence of our existence is oneness. As Moses states:

Hear, O Israel: The Lord is our God; the Lord is one.[2]

This message is so radical, so counter intuitive, so life changing that we are commanded to recite these words, as well as teach them to our children, not once but twice each and every day - once in the morning and once at night.

When we recite the words of the “Shema” prayer, we are telling ourselves and telling our children, that both the “morning”, the moments of life in which we feel the blessings of G-d shining upon us, as well as the “night”, the moments of darkness and challenge, are expressions of the one G-d.[3] The Kabbalistic meaning of the phrase “the Lord (Hashem) is our G-d (Elokeynu)” is that the Divine power of expression and revelation (Hashem), as well as his power to conceal and hide his presence (Elokim), are, in truth, one and the same. The difference between revelation and concealment, between good and evil, between night and day, is only from our prospective. The truth however is that both are expressions of Godliness. There are times when G-d’s love, providence and protection is concealed, yet the central pillar of our faith is that G-d’s presence, although it may be hidden, exists and pervades all of reality.

The same is true for the opposing drives within our own heart. Immediately after declaring that at the core all of reality is oneness, Moses continues in the Shema: “And you shall love the Lord, your God, with all your heart”, Rashi, quoting the Midrash and the Mishnah, explains that “with all your heart” means “love Him with your two inclinations [the good and the evil].” What is true for the macro universe is also true for the micro universe, the one within the heart of man. Although we feel the evil inclination and the good inclination pulling us in completely different directions, although it seems that the animal soul and the G-dly soul do not share a common goal, the truth, however, is that at the core they are one. They were both created for the same purpose, and both are necessary in order for us to reach the purpose of our creation. The passion of the animal soul must be transformed to the love of G-d, not by suppressing the passion but by channeling it. At its core, the animal soul wants what is good for itself, once we teach it to develop a taste and an appreciation for spirituality, the passion and might of the animal soul will be reoriented, and the love to all that is positive, constructive and holy will be far greater than the love that the G-dly soul can produce on its own.

This then is Judaism's unique perspective: G-d is the one truth that pervades all existence and we, in turn, must create that oneness within our heart, channeling the animal soul’s immense passion toward the love of G-d.[4]

^{^[1]} Ecclesiastes 3:2-8.

^{^[2]} Deuteronomy 6:4.

^{^[3]} See Lekutey Sichos vol. 14, Vaeschanan Sicha 2.

^{^[4]} See Lekutey Torah Vaeschanan, 7:4.

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