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Confession

CONFESSION

A statement by which an individual acknowledges his or her guilt in the commission of a crime.

One vital function of the U.S. judicial system is to determine the guilt or innocence of suspects who have been accused of crimes. Confessions can play a key role in making this determination. Courts in the U.S. have recognized the fallibility of inaccurate or involuntary confessions—such as those that have been obtained as the result of threats or trickery—and have developed a body of law to prevent untrustworthy confessions from jeopardizing a criminal defendant's civil rights.

Confessions were always allowed as evidence in early English common-law trials, even when torture was used to elicit them. Not until the mid–eighteenth century did judges in England start to admit only confessions that they deemed trustworthy. To determine the trustworthiness of a confession, judges considered the circumstances surrounding it, whether a threat or promise coerced the suspect to confess, and whether the suspect confessed voluntarily.

The U.S. Supreme Court first addressed the issue of confessions in the 1884 case of Hopt v. Utah, 110 U.S. 574, 4 S. Ct. 202, 28 L. Ed. 262. Following the English common-law standard, the Court looked at whether the suspect had confessed voluntarily or as a result of a threat or promise. The Court first invoked the U.S. Constitution to support this voluntariness standard in the 1897 case of Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568.

In Bram, the Court applied the fifth amendment's privilege against self-incrimination to confessions in federal courts, observing that any amount of influence exerted to obtain a confession would render the confession involuntary and thus inadmissible. The Bram holding initially created a harsh standard of confession admissibility. Later decisions interpreting Bram lowered the standard by requiring that a confession be excluded from evidence only if the amount of influence that had been used to obtain it actually called into question the statement's reliability.

In 1936, the U.S. Supreme Court considered the issue of coerced confessions for actions in state court, rather than federal court, in Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682. Brown involved three African-American defendants who had confessed to the murder of a white man only after being beaten and tortured by state police. The Court, this time, invoked the Fourteenth Amendment's due process guarantee in holding the confessions to be inadmissible because the police had obtained them in a way that violated basic liberty and justice principles. The Court in Brown announced a due process analysis to be employed by state courts on a case-by-case basis to determine whether, given the totality of the circumstances, a suspect had confessed voluntarily. The analysis was to include an assessment of the suspect's character and status as well as of the methods used by the police.

Case-by-case determination of the kind required by Brown proved to be unwieldy for state courts because the method was so fact-specific. Appellate courts had difficulty setting effective precedents because case outcomes depended solely on unique factual circumstances. As a result, the police were left with little guidance as to thew way to interrogate suspects properly and lawfully.

By the mid-1960s, the U.S. Supreme Court once again began to alter its approach to determining the admissibility of confessions. Starting with Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964), the Court held that the Fifth Amendment privilege against self-incrimination, which previously had applied only to federal actions, now applied to state actions as well. Thus, the Court held, suspects in state court were entitled to the same standards governing confessions—initially set forth in the Bram opinion—as were suspects in federal court.

In massiah v. united states, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), the Court continued to move away from the fourteenth amendment due process analysis that it had employed in its previous decisions. In Massiah, the Court held that the sixth amendment grants criminal defendants the right to counsel during post-indictment interrogations, and when this right is violated, confessions obtained are inadmissible. In escobedo v. illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), the Court expanded this protection to preindictment confessions, holding that the right to counsel attaches when a police investigation becomes accusatory.

Two years later, the Court handed down the landmark decision miranda v. arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), finding that police custody is inherently coercive, and therefore that criminal suspects in police custody must be informed expressly of their constitutional rights before interrogation begins. A suspect's Miranda rights include the right to remain silent and to have a lawyer present during questioning. Any statements made by the suspect may be used against him or her in a court of law. The Court held in Miranda that a suspect may waive any of these rights, but only if the waiver is made voluntarily, knowingly, and intelligently. But Miranda left these criteria essentially undefined, thus prompting a glut of litigation concerning the validity of Miranda waivers.

The Court attempted to clarify its position in North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 286 (1979). Willie Thomas Butler had spoken with the police after they had advised him of his Miranda rights, then later sought to have the court exclude his incriminating statements because he had declined to sign a waiver agreement. In ruling against Butler, the high court adopted the "totality of the circumstances" approach for determining whether a waiver of Miranda rights is voluntary, knowing, and intelligent. Butler, the Court found, had implied a voluntary waiver through his words and actions, thus making an express written waiver unnecessary. Butler thus required courts to determine the voluntariness of a suspect's waiver case by case. Butler further instructed courts to invalidate seemingly voluntary waivers in instances of apparent coercion, deceit, or trickery on the part of police.

Another attempt at clarification came in Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986), in which the Court held that the suspect's confession had been voluntary and valid even though the police, after reciting Miranda rights, had failed to inform him that his attorney had been trying to contact him. The Court in Burbine found that although the police have a duty to convey Miranda rights, including the right to an attorney, there is no constitutional duty to inform a suspect when that suspect's attorney wants to confer. The Court further held that Miranda rights belong to the suspect, and therefore it was irrelevant that the police in Burbine had deceived the suspect's attorney by falsely stating that they would not interrogate the suspect. Burbine invoked a two-pronged test for courts to apply in determining waiver validity: (1) whether the suspect's choice to waive Miranda rights was free and uncoerced; and (2) whether the suspect fully understood the consequences of waiving those rights.

Nine months later, the Court refined Burbine's first prong in Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). Francis Barry Connelly, who was diagnosed as schizophrenic, made unsolicited murder confessions to the police while he was in a psychotic state. He continued to talk even after the police read him the Miranda rights. In attempting to exclude the confession at trial, Connelly's attorney argued that Connelly had no control over his psychotic delusions, and that the confession therefore had been involuntary.

Finding no police misconduct, the high court ruled against Connelly, stating that "Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that." Connelly suggests that the voluntariness of a waiver depends on the conduct of the police, not the mental state of the suspect. Yet the mental state of the suspect may still play a role in Burbine's second prong, which considers the suspect's awareness of Miranda rights and the consequences of waiving them.

Legal commentators have criticized Miranda and its subsequent line of decisions, stating that criminal suspects seldom truly understand the meaning or importance of the rights recited to them. Studies have indicated that the Miranda decision has had little effect on the numbers of confessions and requests for lawyers made by suspects in custody. What is more, critics of Miranda cite concerns that the police might fabricate waivers, as a suspect's waiver of Miranda rights need not be recorded or made to a neutral party. Proponents argue that Miranda protects criminal suspects and reduces needless litigation by providing the police with concrete guidelines for permissible interrogation.

Even though the idea behind Miranda rights is to protect suspects in custody from police coercion, the U.S. Supreme Court in 1991 held that coerced confessions nevertheless may be used in court if their use is harmless—in other words, if a jury would probably convict even without them (Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302). The police suspected that Oreste Fulminante had killed his 11-year-old stepdaughter, whose body was found in an Arizona desert two days after he had reported her missing. Before he was charged with the murder, Fulminante had received a prison sentence for an unrelated weapons-possession charge. While in prison on that charge, he confessed the murder to a fellow inmate, who actually was a paid federal informant. The informant had offered to protect Fulminante from other inmates in exchange for hearing the truth about the murder. Fulminante was subsequently indicted for the killing, and his confession was used at trial despite his objection. A jury found him guilty of murder and sentenced him to death. The U.S. Supreme Court applied the harmful error test and found that the jurors most likely would not have convicted Fulminante had they not heard his coerced confession, thus its use at trial was harmful. The Court ordered the case back for a new trial, this time without use of the confession.

Legal scholars have criticized the Fulminante decision for failing to follow decades of legal precedent holding that coerced confessions violate the due process rights of criminal suspects and that their use at trial necessitates automatic reversal, whether they are harmful or not. Fulminante, they argue, encourages the police to ignore the civil rights of suspects and to coerce confessions. Others argue that the decision is correct because it focuses on achieving an accurate determination of guilt or innocence regardless of whether constitutional rights are violated. Whatever its long-term effects, Fulminante will not be the final word in the progression of U.S. Supreme Court cases defining the law of confessions.

Recent Developments

In 1999, the U.S. Court of Appeals for the Fourth Circuit fueled long-standing speculation that Miranda would be overruled, when it held that the admissibility of confessions in federal court is governed not by Miranda, but by a federal statute enacted two years after that decision. The statute, 18 U.S.C.A. Section 3501, provides that a confession is admissible if voluntarily given. Congress enacted the statute in order to overturn Miranda, the Fourth Circuit said, and Congress had the authority to do so pursuant to its authority to overrule judicially created rules of evidence that are not mandated by the U.S. Constitution. United States. v. Dickerson, 166 F. 3d 667 (4th Cir. 1999).

The U.S. Supreme Court reversed. In an opinion authored by Chief Justice william rehnquist, the Court said that, whether or not it agreed with Miranda, the principles of stare decisis weigh heavily against overruling it now. While the Court has overruled its precedents when subsequent cases have undermined their doctrinal underpinnings, that has not happened to the Miranda decision, which the Court said "has become embedded in routine police practice to the point where the warnings have become part of our national culture." Although the Court acknowledged that a few guilty defendants might go free as the result of the application of the Miranda rule, "experience suggests that the totality-of-the-circumstances test which Section 3501 seeks to revive is more difficult than Miranda for law enforcement officers to conform to and for courts to apply in a consistent manner." Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000).

In another decision, the Court actually increased defendants' constitutional rights when it ruled that the protections provided by its decision in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (which held that the introduction of a non-testifying codefendant's confession incriminating both himself and the other defendant in a joint trial violated the other defendant's Sixth Amendment right to cross-examine witnesses) were applicable to a codefendant's confession that substituted blanks and the word deleted in place of the defendant's proper name. The Court said that redactions that simply replace the defendant's name with an obvious substitute, such as deleted, a blank space, a symbol, or other similarly obvious indications of alteration, result in statements that so closely resemble the unredacted statements in Bruton that the law must require the same result. The Court believed that juries will often react similarly to unredacted confessions and to poorly redacted confessions, as jurors often realize that a poorly redacted confession refers specifically to the defendant, even when the statement does not expressly link the defendant to the deleted name. Additionally, the Court stressed that by encouraging the jury to speculate about the removed name, the redaction might overemphasize the importance of the confession's accusation once the jurors figure out the redacted reference. Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998)

In Martinez v. City of Oxnard, 270 F. 3d 852 (9th Cir. 2001), the U.S. Court of Appeals for the Ninth Circuit ruled that violating a defendant's rights against coerced confessions can give rise to a civil rights action against the police officer who attempted to coerce the confession. Martinez stemmed from a 45-minute emergency-room interrogation of a narcotics suspect who had been shot five times by a police officer while being subdued during the arrest. The suspect, who was rendered blind in one eye and paralyzed below the legs by the gunshot wounds, sued the officer who had conducted the interrogation. The officer interposed a defense of qualified immunity, claiming that he could not be sued for injuries suffered by the defendant while the officer was simply doing his job.

The district court rejected the officer's defense and granted summary judgment to the narcotics suspect on his civil rights claim under 42 U.S.C.A § 1983. In affirming the district court's decision, the Ninth Circuit ruled that a police officer may raise the defense of qualified immunity only when he or she could have reasonably believed that his or her conduct was lawful under settled law. In this case, the record revealed that the officer had doggedly tried to exact a confession from the suspect without first reading him the Miranda warnings, and that he then had proceeded to ignore the suspect's repeated requests for the officer to cease the interrogation until he was finished receiving medical treatment for his life-threatening injuries. No reasonable officer, the court concluded, could have believed that interrogating the suspect under those "extreme circumstances" comported with the Fifth Amendment's prohibitions against coerced confessions, and thus the officer was not entitled to assert qualified immunity as a defense. Accordingly, the district court's grant of summary judgment against the officer was affirmed. However, the U.S. Supreme Court granted the officer's petition for certiorari.

further readings

Chertoff, Michael. 1995. "Chopping Miranda Down to Size." Michigan Law Review 93.

Green, Jana. 1992. "Arizona v. Fulminante: The Harmful Extension of the Harmless Error Doctrine." Oklahoma City University Law Review 17.

Hourihan, Paul. 1995. "Earl Washington's Confession: Mental Retardation and the Law of Confessions." Virginia Law Review 81.

LaFave, Wayne R., and Fred L. Israel. 2001. Criminal Procedure. 6th ed. St. Paul, Minn.: West Group.

Stack, W. Brian. 1994. "Criminal Procedure—Confessions: Waiver of Privilege against Self-Incrimination Held Invalid Due to Police Failure to Inform Suspect of Attorney's Attempt to Contact Him—State v. Reed." Seton Hall Law Review 25.

cross-references

Criminal Law; Criminal Procedure; Custodial Interrogation.

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confession

confession, in law, the formal admission of criminal guilt, usually obtained in the course of examination by the police or prosecutor or at trial. For a confession to be admissible as evidence against an accused individual, it generally must have been procured voluntarily after the person was informed of his or her right to remain silent and right to consult an attorney (see Miranda v. Arizona). If a confession is obtained through torture, threats, prolonged interrogation, or false promises of immunity from prosecution, it is inadmissible, but law enforcement officials may and do use psychological pressure, which can lead to false confessions. A signed confession is presumed to be voluntary, and the accused must introduce proof that it was extorted in order to prevent its introduction at the trial. In 1981 the U.S. Supreme Court ruled that murder defendants should be informed of their right to remain silent during interviews with psychologists, who might later testify for the prosecution that the client was "dangerous" and thus deserving of a stiff penalty. A 1986 ruling stated that a criminal defendant entering a plea of "not guilty" had the right to describe to the court how his confession was obtained by police. The ideal of a voluntary confession was upset recently, however, in the case of Arizona v. Fulminante (1991). There, the Supreme Court ruled that coerced confessions do not invariably nullify a conviction, but can be regarded merely as "harmless errors" —at least where additional incriminating evidence is available. Usually, a person who does not plead guilty cannot be convicted solely on the basis of his confession.

See P. Brooks, Troubling Confessions: Speaking Guilt in Law and Literature (2000).

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Confession

Confession

Christianity



1. An affirmation or profession of faith: (i) the testimony of a martyr or confessor (e.g. 1 Timothy 6. 13); (ii) a doctrinal statement in the Orthodox Church; (iii) Protestant professions of faith, especially of 16th/17th cents.

2. An acknowledgement of sin. In Christianity, this may be made either in worship by a congregation (‘general confession’), or privately to a priest (‘auricular confession’: Lat., ad auriculam, ‘to the ear’), who mediates God's willingness to forgive, and pronounces God's absolution.

The recognition and acknowledgement of fault occurs in all religions, and the term ‘confession’ is applied widely, although what is happening in the context of each religion may be very different.

Judaism

Confession of sin in Judaism (Heb., vidduʾi) is an essential prequisite of expiation. Prayers of confession are part of the synagogue liturgy, particularly at Rosh ha-Shanah and Yom Kippur, and well-known prayers include Ashamnu (We have incurred guilt) ʿAl het (For the sin), and Avinu malkenu (Our father, Our king).

Buddhism

In Buddhism confession is not made to a divine power and there is no concept of absolution or the forgiveness of sins. The act of confession (pāpa-desanā) is the owning-up to one's failings or shortcomings in order to cultivate greater self-awareness and be freed from the burden of persecutory guilt. The occasion for confession in monastic Buddhism is a formal public event which takes place at the Uposatha ceremony. There is no counterpart to this formal ceremony for lay Buddhists.

Jainism

Confession (alocana and pratikramaṇa) occurs twice daily for monks; laypeople make confession to their guru.

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confession

con·fes·sion / kənˈfeshən/ • n. 1. a formal statement admitting that one is guilty of a crime. ∎  an admission or acknowledgment that one has done something that one is ashamed or embarrassed about: by his own confession, he had strayed perilously close to alcoholism. ∎  a formal admission of one's sins with repentance and desire of absolution, esp. privately to a priest as a religious duty: she still had not been to confession. ∎  (confessions) often humorous intimate revelations about a person's private life or occupation, esp. as presented in a sensationalized form in a book, newspaper, or movie. 2. (also confession of faith) a statement setting out essential religious doctrine. ∎  (also Confession) the religious body or church sharing a confession of faith. ∎  a statement of one's principles: his words are a political confession of faith. DERIVATIVES: con·fes·sion·ar·y / -ˌnerē/ adj.

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confession

confession a formal admission of one's sins with repentance and desire of absolution, especially privately to a priest as a religious duty.

Confession is also used for a statement of faith setting out essential religious doctrine (also called confession of faith); (with capital initial) the religious body or Church sharing a confession of faith.
confession is good for the soul confession is essential to repentance and forgiveness. Saying recorded from the mid 17th century.

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confession

confession Acknowledgement of sins. In the Jewish and Christian traditions, it may be made by a congregation in the course of worship, or by individual penitents.

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Confession

Confession

a religious group; a body or church united by a particular confession of faith. See also communion, congregation.

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Confession

CONFESSION

Along with admissions of fact from which any criminal responsibility may be inferred, confessions are not admissible as evidence in criminal or quasi-criminal proceedings, for "no man may call himself a wrongdoer" (Sanh. 9b). This rule against self-incrimination developed from the rule that a wrongdoer is incompetent as a *witness, being presumed to be unjust and untruthful (cf. Ex. 23:1). Since some people might admit to misconduct in order to disqualify themselves from testifying, to cure this mischief the rule was laid down that no man can be heard to say of himself that he is so guilty as to be an incompetent witness (Sanh. 25a; bk 72b). The rule was originally derived from the principle that no man is competent to testify in his own favor (Ket. 27a) – his confession being intended to confer the benefit of not being required to testify.

The rule against self-incrimination dates only from talmudic times. Several instances of confessions are recorded in the Bible (e.g., Josh. 7:19–20; ii Sam. 1:16; cf. i Sam. 14:43), but these are dismissed by talmudic scholars either as confessions after trial and conviction, made for the sole purpose of expiating the sin before God (Sanh. 43b), or as exceptions to the general rule (hora'at Sha'ah; cf. Maim. comm. to the Mishnah, Sanh. 6:2; Ralbag to ii Sam. 1:14). As all instances recorded in the Bible related to proceedings before kings or rulers, it may be that they did not consider themselves bound to observe regular court procedures (cf. Maim. Yad, Melakhim 3:10). Confessions are inadmissible not only in capital cases, but also in cases involving only *flogging, *fines (Rashi to Yev. 25b), or quasi-punishments (ibid.; cf. Resp.Rosh 11:5). Opinions are divided on whether a *ḥerem and public admonitions could be administered on the strength of a confession only.

Varying reasons were given for the rule against self-incrimination: the earliest and commonest is that the biblical requirement of the evidence of at least two witnesses for the condemnation of any man (Deut. 17:6; 19:15) implicitly excludes any other mode of proof (Tosef., Sanh. 11:1, 5). Maimonides adds that melancholy and depressed persons must be prevented from confessing to crimes which they have not committed so as to be put to death (Yad, Sanhedrin 18:6). Another theory was based on the prophet's words that all souls are God's (Ezek. 18:4), hence no man may be allowed to forfeit his life (as distinguished from his property) by his own admission, his life not being his own to dispose of but God's (David b. Solomon ibn Abi Zimra); still another scholar held that if confessions were accorded any probative value at all, courts might be inclined to overrate them, as King David did (ii Sam. 1:16), and be guilty of a dereliction of their own fact-finding task (Joseph ibn Migash). A 19th-century jurist (Mordechai Epstein) pointed out that the real difference between civil admissions and criminal confessions was that by an admission an obligation was created which had only to be enforced by the court, whereas in a criminal conviction it is the court which creates the accused's liability to punishment. While it is nowhere expressed, the reason for the exclusion of confessions may well have been the desire to prevent their being elicited by torture or other violent means: it is a fact that – unlike most contemporaneous law books – neither Bible nor Talmud provide for any interrogation of the accused as part of the criminal trial, so that there was no room for attempts to extort confessions.

[Haim Hermann Cohn]

In the State of Israel

The question of reliance upon self-incriminating confessions has often arisen in the courts. In Cr.A. 614, 5561/80 Al Bahiri v. State of Israel 37 (3) pd 169, Justice M. Elon reviewed Jewish law on this question, stating that "Jewish law originally maintained that a defendant's self-incriminating confession was absolutely inadmissible, pursuant to the rule that 'since a person is related to himself, no one may incriminate himself [lit. 'a person cannot make himself out to be a wrongdoer]' (Yev. 25b). The confession of a crime was absolutely inadmissible, whether the accused confessed outside or in court, and even if there was corroboration. One could not be convicted unless there was sufficient evidence and testimony to the commission of the crime. During the course of time, with the changing needs of the times and of society, various changes were made towards easing the methods of proof in criminal law. Certain witnesses were deemed qualified who had previously been legally disqualified; and circumstantial evidence was held sufficient if it was strong and substantial. Within the framework of these major changes, it also became possible to convict a defendant on the basis of his confession (Resp. Rashba iv, 311), but the qualification was established that a defendant's confession alone was not sufficient unless, in addition, there had to be 'some measure of corroboration' to support the veracity of the confession: In such a case, it is the practice to accept the defendant's confession even in a capital case where there is no clear proof, in order that what he says, 'together with some measure of corroboration, may clarify what occurred' (Resp. Ribash, 234)." The reluctance to rely upon self-incriminating confessions was due to the concern expressed by Maimonides that such a defendant may be subject to "inner pressure" to blame himself for a crime that someone else has committed: "Perhaps he is among the melancholy and depressed who wish to die [and] who thrust swords into their bellies or throw themselves down from the rooftops. Perhaps such a person will come and confess to a crime that he did not commit, in order that he may be killed" (Maim. Yad, Sanhedrin 18:6). In this case, one of the issues decided was that a failure to testify in court cannot be considered the "something in addition" which, added to the extrajudicial confession, suffices for conviction, the reason being that the very "inner pressure" that renders a confession unreliable without corroboration, may well be the basis for the defendant's unwillingness to testify in court. Moreover, in keeping with Jewish legal principles as they developed over time, the court suggested that the law be amended and that the "something in addition" required only in regard to extrajudicial confessions be also required in regard to confessions made in court. Justice Elon added that the danger of convicting an innocent man on the basis of his confession is very worrisome, and in this regard the principle was stated, "it is better and more desirable that a thousand guilty persons go free than that a single innocent person be put to death" (Maim. Sefer ha Mitzvot, Neg. Commandment, 290).In an earlier case that reviews Jewish law's stringent evidentiary requirements and mentions the above principle of Maimonides (Cr.A. 641, 622, 543/79 Nagar et al. v. State of Israel, 35 (1) pd 35 113), the question arose as to whether a conviction for murder could be based upon circumstantial evidence alone or upon an extrajudicial confession, supplemented by "some-thing in addition." Here Justice Elon outlined the Jewish legal sources as they developed over time relating to circumstantial evidence, the admissibility of testimony of relations and of self-incriminating confessions, and showed, based on the responsa of Rashba (iv, 311) and Ribash (251, 234), that self-incriminating confessions, though inadmissible alone, could be admissible if supplemented by "something in addition." In a case at first instance in the Beersheba District Court (Cr.F. 76/93 State of Israel v. Suleiman El Abid), Judge N. Hendel, in a minority opinion, examined the sources of Jewish law relating to circumstantial evidence and the inadmissibility of self-incriminating confessions, linking this question, following U.S. Judge Douglas' statement that the Fifth Amendment (against self-incrimination) "is part of our respect for the dignity of man," with Israel's Basic Law: Human Dignity and Freedom, which is intended "to anchor in a basic law the values of the State of Israel as a Jewish and democratic state." Upon this foundation, the court discussed the admissibility of confessions in keeping with Jewish values, extensively examining the sources of Jewish law (Maim. Yad, Sanhedrin 18:6; Resp. Ribash, 233; Resp. Rashba iii, 399; Radbaz on Sanh. 18, and R. Simeon Shkop on Ket. 18b, 5) that provide different reasons for the inadmissibility of self-incriminating confessions. The Ribash, in view of Jewish law's reservations as to ascetic behavior and its opposition to self-inflicted harm, questions the motive of one who wishes to confess; stating that it need be closely examined in case it is due to a self-destructive urge (cf. Maim. Yad, Sanhedrin 18:6) or a misplaced wish to placate the conscience. The Radbaz states that such a confession is ineffective as "his soul does not belong to him but rather to the Holy One, blessed be He" (see Ez. 18:4); thus a confession in regard to what is not his is of no effect. R. Shkop's reason for the inadmissibility of confessions is the danger that too great a weight would be ascribed to them since they seem to constitute strong evidence, with the result that the court would be dazzled and not reach a balanced judgment. However, over time in certain Jewish communities, the pressure of circumstances necessitated that confessions be admitted within the framework measures of exigency (Resp. Rashba iii, 399) with the qualification that "something in addition" must supplement them (Resp. Ribash, 233). Finding the case exclusively based upon the defendant's confession, Justice Elon suggested adopting Jewish law's careful approach and in the absence of clear corroborative evidence ruled that El-Abid be acquitted. The difficulty of the case is apparent in its development: initially El-Abid was convicted (by majority) for murder and rape; on appeal to the Supreme Court, only the rape conviction remained (by majority), while in a further hearing, only the murder conviction was upheld (by majority). In another case (Cr.A. 168, 115/82 Moadi v. State of Israel, 38 (1) pd 197), Justice Elon held (257–65) that the rationale behind the requirement that a confession must be "voluntary" is solely to ensure the reliability and truth of the confession and that a judgment rendered in disregard of this would be contrary to the judge's duty to render a judgment that is "true to its very truth" (din emet le-amito) (Shab. 10a; Er. 54b; Meg. 15b; Sanh. 7a, 1 11b).

[Menachem Elon (2nd ed.)]

bibliography:

et, 1 (1951), 88–90, 225–7, 266; 7 (1956), 372; 8 (1957), 432–5; H. Cohn, in: Journal of Criminal Law, Criminology and Police Science, 51 (1960–61), 175–8; H.E. Baker, Legal System of Israel (1968), 226. add. bibliography: M. Elon, Ha Mishpat ha-Ivri (1988), 1:568f; 2:1465; idem, Jewish Law (1994), 2: 698; 4;1740; idem, Jewish Law (Cases and Materials) (1999), 206–12; A. Kirshenbaum, Harsha'ah Aẓmit ba-Mishpat ha-Ivri (2005).

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