Plead the Fifth

Friday, 25 August, 2017 - 8:48 am

b.jpgPlead 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. 17th 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.


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