Daf Ditty Yevamot 25: Self Incrimination

1
2
MISHNA: An agent who brought a bill of divorce from a country overseas and said: It was
written in my presence, and it was signed in my presence, as required in order to establish the
bill of divorce as valid, may not marry the wife, i.e., the divorcée. Since the validity of the bill of
divorce is based upon his testimony, marrying the divorcée creates the impression that he had an
ulterior motive for his testimony. Similarly, a witness who testified that a certain man died, or
testified: I killed him, or: We killed him, may not marry that man’s wife. Rabbi Yehuda says:
If he testified: I killed him, his wife may not be married at all based on that evidence, as his
testimony is unreliable, but if he said: We killed him, his wife may be married to anyone other
than those witnesses.

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GEMARA: The Gemara clarifies: The reason that the agent may not marry the divorcée applies
specifically in a case where he brings the bill of divorce from a country overseas, as in this case
we, the court, rely upon his testimony to validate the bill of divorce. But an agent who brings a
bill of divorce from Eretz Yisrael need not make any verbal declaration, and since we, the court,
do not rely upon his testimony but upon the written bill of divorce alone, he may marry his wife,
i.e., the divorcée, since it does not arouse suspicion.

The Gemara challenges this: But also in the case of a witness who said that the husband died, we,
the court, do not rely solely upon his testimony. As the Master said: A woman is exacting in
her investigation of the truth of the testimony that her husband died before she marries again, and

4
it is primarily on that basis that she is permitted to remarry. Yet it is taught that he still may not
marry his wife.

The Gemara answers: The two cases are not comparable, as there, in the case when a witness
testifies that the husband has died, there is not anything written as proof, and therefore he may
not marry the widow. However, here, in a case where an agent brings a bill of divorce from Eretz
Yisrael, there is a written document that is valid without any testimony. As we learned in a
mishna (117a): What is the difference between a bill of divorce and death? Why does the court
rely upon those men who are not trusted as witnesses to the death of a husband if they act as agents
to bring a bill of divorce, even from overseas, such that they must give testimony that it was written
and signed in their presence? The difference is that with regard to a bill of divorce the writing
proves their testimony.

The mishna stated that if the witness said with regard to the husband that he died, or: I killed him,
or: We killed him, then he may not marry the wife of the deceased. The Gemara infers that he,
the witness himself, may not marry the wife; this implies that to another she may be married
on the basis of his testimony.

The Gemara challenges this: Didn’t Rav Yosef say: With regard to one who testified that so-and-
so sodomized me against my will, then he who testified to being the victim of the sexual assault
and another bystander witness can combine as a pair of witnesses in order to put the assailant to
death for homosexual intercourse. But if he testified: I was willingly sodomized by so-and-so,
then he is wicked by his own admission, since he willingly transgressed. And the Torah said:

‫ ִלְה ֹית‬,‫ ָרָשׁע‬-‫ ִﬠם‬a‫ָתֶּשׁת ָיְד‬-‫ ֵשַׁמע ָשׁ ְוא; ַאל‬,‫א ל ֹא ִתָשּׂא‬ 1 Thou shalt not utter a false report; put
.‫ֵﬠד ָחָמס‬ not thy hand with the wicked to be an
unrighteous witness.
Ex 23:1

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“Put not your hand with the wicked to be a corrupt witness”. If one renders himself unfit as a
witness by admitting to murder, how can his testimony be accepted to permit the wife to remarry?

MISHNA: A Sage who refused to release a woman from a vow that rendered the wife forbidden
to her husband by that vow, resulting in her being divorced from her husband, may not marry
her, so as to avoid suspicion that he rendered her forbidden to her husband in order to marry her
himself. However, a judge before whom a woman performed refusal when she was a minor,
declaring that she did not desire the husband chosen for her by her family, or before whom she
performed ḥalitza, may marry her because he was only one member of the court, thereby
alleviating suspicion.

GEMARA: The mishna taught that a Sage who rendered a woman forbidden to her husband may
not then marry her. The Gemara deduces from here: This implies that if he rendered her permitted
to her husband and she was later widowed or divorced, then he may marry her. The Gemara
clarifies this: With what are we dealing? If we say that he was a single judge and not part of a
court, can a single judge dissolve vows? But didn’t Rav say that Rabbi Ḥiyya bar Avin said
that Rav Amram said: It is taught in a baraita: Dissolution of vows requires a court of three
judges?

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Rather, could it be a case of three judges rather than one? In such a case, would they be suspect
of distorting judgment? But didn’t we learn in the mishna: If she performed refusal or
performed ḥalitza before him, he may marry her because he functioned as a member of a court
of three? This teaches that there is no suspicion of a judge in a court of three.

The Gemara answers: Actually, you should explain that this case is that of a single judge, and it
is as Rav Ḥisda said that Rabbi Yoḥanan said: Vows may be dissolved even by a single expert,
and a three-member court is not always necessary. Here too, it is referring to a single expert
refusing to nullify her vow.

Summary

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Introduction1

Mishnah ten is a continuation of mishnah nine.

A sage who has pronounced a woman forbidden to her husband because of a vow must not
marry her himself. If, however, a woman made a declaration of refusal or performed halitzah
in his presence, he may marry her, since he [is part of a] court. If any of these had wives who
[subsequently] died, [the other women] are permitted to marry them. If [the women] were
married to others and were [subsequently] divorced, or widowed, they may be married to
these. They are permitted to their sons or brothers.

The sage may not marry the woman whom he has declared forbidden to her husband due to a vow.
This could happen if the woman vowed to receive no benefit from her husband, and then came in
front of the sage to release her vow (we will learn how a vow is released in tractate Nedarim). If
the sage could not find an opening to release the vow, then the woman remains forbidden to her
husband. The sage may not marry her lest he did not search hard to find a way to release the vow
because he wanted to marry the woman himself. However, if a woman performs the declaration of
refusal (an annulment of marriage made by a woman upon reaching majority in a case where her
marriage was contracted by her brother or mother) or halitzah in front of a sage, that sage may still
marry her. In this situation he is part of a court, and we are not suspicious of courts. Furthermore,
with a court, if he wanted to illegally accept her declaration of refusal or halitzah just so that he
could marry her, he would have to get the rest of the court to agree. Since this would not be so
simple, we are not suspicious, and he may marry her.

This section places certain limits on the preceding laws in this mishnah and the previous one. If
these men, who testified and thereby allowed the woman to be freed from her husband (the one
who brought the get, or the one who testified about the husband’s death or the sage who did not
release the vow), had other wives at the time, then they may later, after their current wives die,
marry these other women. Since at the time of their testimony there is little chance that they would
marry the woman about whom they are testifying, they are not suspected of lying. Note that this
mishnah assumes that bigamy is not common, even though it is permitted. Furthermore, if these

1
https://www.sefaria.org/Yevamot.25a.8?ven=William_Davidson_Edition_-_English&vhe=William_Davidson_Edition_-
_Vocalized_Aramaic&lang=bi&p2=Mishnah_Yevamot.2.10&ven2=William_Davidson_Edition_-
_English&vhe2=Torat_Emet_357&lang2=bi&w2=English%20Explanation%20of%20Mishnah&lang3=en

8
women subsequently marry other men and then are again divorced or widowed, they may marry
the men who testified in order to “free” them from their previous marriage. The fact that they
married someone else first, means that the original testimony did not directly allow them to marry
the one who brought the get, testified about the death or did not release the vow. The step in
between gets rid of the suspicion that they were lying. Finally, these women may marry the
children or brother of these men. While we suspect that one may lie in order to free a woman for
himself, we do not have such suspicions for his son or brother.

Mishnah ten is a continuation of mishnah nine2

A sage who has pronounced a woman forbidden to her husband because of a vow must not
marry her himself. If, however, a woman made a declaration of refusal or performed halitzah
in his presence, he may marry her, since he [is part of a] court. If any of these had wives who
[subsequently] died, [the other women] are permitted to marry them. If [the women] were
married to others and were [subsequently] divorced, or widowed, they may be married to
these. They are permitted to their sons or brothers.

The sage may not marry the woman whom he has declared forbidden to her husband due to a vow.
This could happen if the woman vowed to receive no benefit from her husband, and then came in
front of the sage to release her vow (we will learn how a vow is released in tractate Nedarim). If
the sage could not find an opening to release the vow, then the woman remains forbidden to her
husband. The sage may not marry her lest he did not search hard to find a way to release the vow
because he wanted to marry the woman himself. However, if a woman performs the declaration of
refusal (an annulment of marriage made by a woman upon reaching majority in a case where her
marriage was contracted by her brother or mother) or halitzah in front of a sage, that sage may still
marry her. In this situation he is part of a court, and we are not suspicious of courts. Furthermore,
with a court, if he wanted to illegally accept her declaration of refusal or halitzah just so that he
could marry her, he would have to get the rest of the court to agree. Since this would not be so
simple, we are not suspicious, and he may marry her.

This section places certain limits on the preceding laws in this mishnah and the previous one. If
these men, who testified and thereby allowed the woman to be freed from her husband (the one
who brought the get, or the one who testified about the husband’s death or the sage who did not
release the vow), had other wives at the time, then they may later, after their current wives die,
marry these other women. Since at the time of their testimony there is little chance that they would
marry the woman about whom they are testifying, they are not suspected of lying. Note that this
mishnah assumes that bigamy is not common, even though it is permitted. Furthermore, if these
women subsequently marry other men and then are again divorced or widowed, they may marry
the men who testified in order to “free” them from their previous marriage. The fact that they
married someone else first, means that the original testimony did not directly allow them to marry
the one who brought the get, testified about the death or did not release the vow. The step in
between gets rid of the suspicion that they were lying. Finally, these women may marry the

2
https://www.sefaria.org/Yevamot.25b.7?ven=William_Davidson_Edition_-_English&vhe=William_Davidson_Edition_-
_Vocalized_Aramaic&lang=bi&p2=Mishnah_Yevamot.2.10&ven2=William_Davidson_Edition_-
_English&vhe2=Torat_Emet_357&lang2=bi&w2=English%20Explanation%20of%20Mishnah&lang3=en

9
children or brother of these men. While we suspect that one may lie in order to free a woman for
himself, we do not have such suspicions for his son or brother.

Witnesses To Divorce, Adultery, Death & Sexual Assault; Special Privileges

For Sages3

When women are suspected of adultery - this time because shoe prints are found, in various
positions, at the foot of the matrimonial bed - Rabbi Yehuda HaNasi finds this so distasteful that
she should be divorced. Rav believes that a witness is required. The rabbis discuss the power of
rumours. Abaye teaches that his mother (step-mother) taught him that a rumour in a city lasts one
and one-half days. The rabbis question whether divorce should be required if the rumours last
longer than this. However, if the husband, wife, or suspected adulterer have known enemies, all
bets are off. Our Sages go on to discuss when the rabbis say that the wife should be divorced if
the husband remarried her after divorcing her because of rumours/reputation.

A new Mishna teaches that a witness is required to confirm a written get, bill of divorce, that is
delivered overseas. The rabbis do not allow women to marry men who claim to have killed her
husband, for that would suggest that wanting a married woman justifies murder. On the topic of
witnesses, the rabbis discuss what should be done when a person claims that another person
'sodomized' him. The rabbis are not concerned with whether or not this was rape; as long as there
is a witness, the accused is to be put to death. But if he is admitting to his own unlawful sexual
behaviour, can he be trusted as a witness otherwise? We learn in a note that halacha "discard" the
information that he was a participant in this act.

The rabbis note that they may be more lenient when dealing with the assumed death of a
husband. Amud (b) brings us into a more detailed examination of witnesses. Do we believe people
who incriminate themselves? Do we believe them in some cases but not in others? Do we believe
people who admit that they were witness to crimes rather than part of those crimes?

Another new Mishna is introduced. We learn that Sages, who are court officials as well as
scholars, face restrictions due to their posts. For example, he cannot marry a woman after he
presided over her divorce. This would look as though he may have been impartial in his judgement
granting her the get. But he is allowed to marry those who perform chalitza or refusal. In both of
these cases, he is only one member of the court and not the presiding judge.

The Gemara ends our daf with a conversation about the number of judges required to allow one of
those judges to marry the woman being judged. The rabbis wonder what should happen if a Sage
marries a woman whom he should not marry. A note teaches us that the marriage is valid in these
cases. Clearly the Sages are offered greater freedoms than those offered to the rest of society.

3
http://dafyomibeginner.blogspot.com/2014/10/yevamot-25-witnesses-to-divorce.html

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Today's text regarding anal sex is telling. The true sin seems to lie in the act of penetration. Why
is that sin more meaningful than the sin of being the 'receiver' in this the sexual act? Perhaps a
man in this role is considered to be emasculated to such a degree that he is in fact more like a
woman than a man. In that case, his testimony would not count, nor would his version of the
events - unless another witness was present. So is this hatred of male same-sex sexual behaviour
about defining the role of men? Or is it about a hatred of women?

GIVING A "GET" IN FRONT OF BEIS DIN

Rav Mordechai Kornfeld writes:4

The Mishnah teaches that a Chacham who refused to annul a woman's oath and thereby caused her
to become prohibited to her husband is not permitted to marry that woman after she is divorced,
lest he had improper motives when he prohibited her to her husband. However, if a woman
performed Mi'un or Chalitzah in front of a Chacham, he is permitted to marry her because Mi'un
and Chalitzah may be performed only in front of a Beis Din of three judges; there is no reason to
suspect that all three judges had improper motives when they permitted the woman to marry.

Why does the Mishnah omit the obvious case of a Chacham who officiates over a woman's
divorce? The Mishnah should say that if a woman received her Get in front of a Chacham, the
Chacham may marry her because the procedure is done only in front of a Beis Din, and an entire
Beis Din is not suspected of having improper motives.

The PERISHAH (EH 12:8) writes that the Mishnah's omission of the case of a Get proves that a
Get does not need to be given in front of a Beis Din. Since the Get would take effect even without
the Chacham present, the Chacham contributes nothing to the efficacy of the Get. Hence, there is
no reason for the Mishnah to include it in the cases in which the Chacham (or Beis Din) directly
effects the woman's allowance to marry others.

Whether or not the procedure of a divorce must be executed in the presence of a Beis Din is the
subject of considerable discussion among the Acharonim. The NODA B'YEHUDAH (EH 2:105,
114, 118) issues a novel ruling that a Get must be given in front of a Beis Din. He presents several
proofs for his ruling. He cites the OR ZARU'A who rules that a Get may not be given at night.
The Noda b'Yehudah asserts that it may not be given at night because it requires a Beis Din, and
Beis Din does not convene at night.

The Noda b'Yehudah also cites proof from the words of RASHI in Sanhedrin (2a, DH Mi'unin).
Rashi writes that Mi'un must be done in front of a Beis Din because of the principle "k'Ein d'Oraisa
Takun" -- when the Chachamim instituted an enactment, they instituted that it has the same laws
and conditions as the Halachah d'Oraisa upon which the enactment is based. When the Chachamim

4
https://dafyomi.co.il/yevamos/insites/ye-dt-025.htm

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instituted the enactment of Mi'un, they made it similar to the Halachah d'Oraisa (i.e. divorce) and
required a Beis Din. Rashi implies that Mi'un must be done in front of a Beis Din because
a Get must be given in front of Beis Din.

As further support for the Noda b'Yehudah's ruling, the URIM V'TUMIM (9:2) cites the Targum
Yonasan on the verse, "v'Kasav Lah Sefer Kerisus" -- "he shall write for her a deed of separation"
(Devarim 24:1), who interprets the verse to mean that "he shall write a Get in front of Beis Din."
However, the Acharonim point out that the Noda b'Yehudah's ruling that a Get requires a Beis Din
seems untenable. An entire Masechta (Gitin) discusses the details of the laws of divorce, as does
many chapters in the Shulchan Aruch, and yet no mention is made that a Get must be given in
front of Beis Din. On the contrary, the Gemara in a number of places makes the statement, "Do
you think that everyone who divorces his wife does so in front of Beis Din?" (Bava Basra 174b,
Erchin 23a).

Although the Noda b'Yehudah addresses these questions, the Acharonim reject his proofs that a
Get must be given in front of Beis Din. They write that the reason why a Get may not be given at
night is unrelated to the law that a Beis Din may convene only during the day (see BEIS SHMUEL
EH 123:9).

The PISCHEI TESHUVAH argues that when Rashi in Sanhedrin writes that Mi'un must be done
in front of Beis Din because of "k'Ein d'Oraisa Takun," he does not mean that the enactment of
Mi'un is like the Halachah d'Oraisa of Get, but rather that it is like the Halachah d'Oraisa of a Get
Me'usah -- a forced Get which the husband gives against his will. Such a Get must be given in
front of Beis Din in order to be effective, as the Gemara in Gitin (88b) states. Alternatively,
the MAHARAM SHIF in Sanhedrin there explains that Rashi means that the enactment of Mi'un
is like the Halachah d'Oraisa of Chalitzah, which requires a Beis Din. Mi'un more closely
resembles Chalitzah than it does a Get, because it requires an action on the part of the woman, like
Chalitzah, while in the procedure of a Get the woman is passive.

The Acharonim refute the proof from the Targum Yonasan and explain that the Targum does not
mean that the Get must be given in front of Beis Din. The Targum says only that the Get must
be written in Beis Din. The Targum means that a husband may not write any arbitrary text of a
deed of separation that he chooses. Rather, he must write a specific text. He writes the Get in Beis
Din so that the judges can instruct him how to write it correctly.

HALACHAH: The Poskim discuss the ruling of the Noda b'Yehudah at length, but they conclude
that the Halachah does not follow his ruling because none of the earlier authorities mention the
practice to give a Get in front of Beis Din. Nevertheless, the practice is to be stringent and to
require that a Get be given in front of Beis Din, both out of respect for the ruling of the Noda
b'Yehudah and because the writing and giving over of a Get involve many complicated Halachos,
and thus the procedure should be performed in the presence of Beis Din to ensure that it is done
properly.5

5
A lengthy discussion of this topic and a list of the many authorities who deal with it is found in the PISCHEI TESHUVAH in the
beginning of Seder ha'Get, #8, printed in the Shulchan Aruch after Hilchos Gitin, EH 154

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 In That Case, We Accept The Testimony

Steinzaltz (OBM) writes:6

If a man reports to the beit din (the Jewish court) that a certain man has died, based on that
testimony the beit din will act to allow the dead man’s wife to marry.

The Mishna on our daf teaches that if the man testified that a man had died, or if he said that he
had killed a certain person, or that he was involved in the murder, the beit din will accept his
testimony and permit the wife to marry. Nevertheless, the witness (or, perhaps, the murderer) will
not be allowed to marry the widow himself. Rabbi Yehuda disagrees in the case where the man
testifies that he was the murderer and says that in such a case we cannot accept his testimony at
all, since we do not allow a person to incriminate himself. Therefore the woman cannot marry him
or anyone else, since we must assume that her husband is still alive.

According to the Gemara, the Tanna Kamma of the Mishna also agrees that we cannot allow a
person to incriminate themselves. The opinion is presented in the name of Rava that adam karov
etzel atzmo, ve-ein adam masim atzmo rasha – just as a person cannot testify against a close
relative in beit din similarly he cannot testify against himself, incriminating himself. Apparently,
however, the Tanna Kamma relies on an often-discussed Talmudic idea – palginan diburei – we
split up his statement. In this case that means that we reject his self-incriminating statement, but
we accept his testimony that the man had actually been killed.

The mechanism behind the concept of palginan diburei is subject to a disagreement among
the rishonim. The Rashba argues that we can only apply it in cases where we can interpret the
testimony in a way that will allow his entire statement to be understood as being truthful. For
example, in our case, we could say that the witness who says, “I killed him” actually means “I
killed him…accidentally.” If it is impossible to interpret his testimony in such a way, we would
not apply the principle of palginan diburei, and we would reject his testimony entirely.

Others, however, explain that the concept of palginan diburei is powerful enough to allow us to
accept the conclusion of his testimony (that the man is dead) even as we reject the incriminating
aspect of it (that the witness murdered him).

6
https://steinsaltz.org/daf/yevamot25/

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The Gemara contrasts two situations, one where a witness is believed, and the other where he is
not believed.7

From our Mishnah we infer that if a witness comes and brings a ‫ גט‬from within Eretz Yisroel, the
witness is believed, and he may even marry the woman about whom the document speaks. We are
not relying upon the witness’ testimony, as there is no need for his confirmation of the ‫ גט‬having
been written ‫לשמה‬.

In a case where the witness comes and testifies that the husband has died, we allow the woman to
remarry, but here, again, this ruling is not due to the testimony of the witness per se, but rather due
to the conviction of the woman herself, that she is confident that her husband is actually dead. Yet
in this second case, we do not allow the witness to marry the woman.

Why do we allow the witness to marry the woman in the case of the divorce document, but not in
the case where he testified that the man died? The Gemara answers that in the case of the ‫ גט‬we
have a document upon which to rely. In the case of the testimony, we have no document at all, so
we are actually relying upon the witness to a greater degree.

Proof that this contrast is valid is from the case of the five women who are adversaries with a
man’s wife (117a). Even though they are not believed to say the husband died, they are
nevertheless trusted to bring a ‫ גט‬and say ‫נכתב בפני‬.

asks why the five women are believed to bring a ‫גט‬and verify it from outside Eretz
Yisroel, but the messenger in our Mishnah is not believed in this case. He answers that the five
women are suspected of animosity and hatred.

When they bring a document, this suspicion is removed. The messenger, however, is suspected of
desiring to marry this woman. Here, his bringing a ‫ גט‬to court actually adds to this suspicion, so
he is not believed.

Abaye said, “My mother told me…”

In a number of places Rashi (1) mentions that the person Abaye identifies as his mother is not, in
fact, his mother because Abaye was orphaned. Rather, the woman Abaye identifies as his mother
is the woman who raised him.

This principle, that one can refer to a nonbiological parent as a parent is mentioned explicitly in
the Gemara in Megilla (2). In Divrei Hayamim, Basya bas Pharoah is identified as the one who
gave birth to Moshe Rabbeinu. This reference is challenged by the Gemara since Basya merely
raised him but did not give birth to him.

7
https://www.dafdigest.org/masechtos/Yevamos%20025.pdf

14
The Gemara answers with the principle that whoever raises an orphan in their home is credited
with having given birth to him. Rav Moshe Sofer (3), the Chasam Sofer, also points to a source
that indicates that a step-child can be identified as one’s child. The Torah refers to Serach bas
Asher (Bemidbar 26:46) but Ramban (4) notes that Serach was not the biological daughter of
Asher, rather she was his wife’s daughter. Nevertheless, since Asher raised her, the Torah
considers it as if he was her father.

Rav Menashe Klein (5), the Mishnah Halachos, was asked whether a step-son could observe
mourning practices for his stepmother. Mishnah Halachos responded that if the step-mother does
not have a child to say kaddish for her it is permitted for her stepson to recite kaddish, study
mishnayos and give tzedaka on her behalf.

The observation of mourning practices, on the other hand, is restricted to biological children and
should not be observed by stepchildren. Furthermore (6), the permission for a step-son to recite
kaddish on behalf of his step-mother is not considered to be on the same level as a child’s
obligation to recite kaddish for a parent. In those places where the custom is for the mourners to
take turns reciting kaddish there is a hierarchy to be followed to determine which mourner will
recite each kaddish. In the event that there are numerous mourners, those who are reciting kaddish
for a step-parent do not share the same level of obligation to recite kaddish, and those mourning a
biological parent do not have to forgo their privilege for someone who is reciting kaddish for a
step-parent.

At one Seder in the home of Rav Chaim Kanievsky, shlit”a, a guest told a story that originally
appeared in the works of the Ben Ish Chai, zt”l. “Once, a businessman was on the journey home
after a successful stint at a fair.

In one abandoned stretch of road, he spotted another person. As soon as the businessman drew
closer the other man shocked the businessman by pointing a loaded gun right at him. In a gruff
voice, the bandit said, “Hands up! Give me all of your money.”

The businessman did as he was told and handed over all of his hard-won earnings. As the bandit
made to leave, the businessman said, “Wait! I am really in a bind now. Won’t you help me?” “Nu?”
said the bandit, clearly in a rush to make his getaway. “That’s not only my money that I gave
you—it is also the return on the investments of others! They will never believe that I was robbed.”

15
The bandit openly sneered, “Are you trying to ask for some money back?” “No, no. All I am asking
for is that you shoot a few holes in my hat.” “What?” asked the surprised bandit. “If you shoot my
hat there will be no denying that I was really robbed.” “Fine,” said the thief. “Take off your hat
and hold it away from you and I’ll do it.” Bang! “Can you shoot another hole so no one will doubt
my story?” asked the businessman. Bang! “Please fire again,” begged the traveler. Bang! “Could
you do a couple more, so it looks completely realistic?” “I think three bullet holes is enough,”
demurred the thief, “But if you really want me to…” “Just one more,” begged the victim. “Alright,
but then I’ve got to go.”

Click. “You fool,” shouted the thief. “Now I’m out of ammunition!” The merchant grinned and
said, “If that’s the case, I’ll take back my money!”

He beat the bandit soundly and retrieved his property. After everyone at the table finished laughing,
Rav Kanievsky spoke up. “Don’t forget what the bandit told the merchant as he was taking the
money: ‘It’s not enough that you finished my ammunition and beat me up—you’re taking my
money too?’ Even a bandit thinks that he’s in the right!”

“Abayeh said, my mother told me…

The Gemara in Kiddushin 31b says that Abayeh’s parents passed away when he was born, and he
referred to his stepmother as “mother.”

This opens up to the fascinating sugya of stepparents. What are the parameters of kibud horim
towards them? Do the laws of mourning apply to them? Let’s discuss some issues that come up.

A very common issue with adopted children is yichud. Since the child is not actually related, it
should be forbidden for a man to be alone with an adopted daughter, and a woman with such a son.

Rav Moshe Feinstein brings an interesting proof from the Gemara that it is permissible. It says that
a boy cannot marry his adopted sister, since it would look like two siblings marrying each other.
Now, if the father was always careful to avoid yichud and physical contact with her, she would not
really look like a daughter! He clarifies that it is not a problem as long as both adoptive parents
are alive. The mere presence of the other spouse serves as a safeguard to permit yichud.
After one parent dies, however, they should try to be careful about it (Igros Moshe Even Ha’ezer
Vol. 4:64).

16
An integral part of child raising is physical contact between parent and child. May an adoptive
parent hug or kiss his or her child? In the teshuvah of R’ Moshe Feinstein he writes that if one
raises a child he may show physical affection as is normal for a parent to do. In another case, a
bochur found out that his mother was actually not his biological parent and did not want to touch
her anymore. His father became furious and threatened to throw him out of the house. They
approached R’ Moshe, who ruled that he may touch his mother, just to do it in a slightly different
manner than is usual.

This was reported to Rav Moshe Shternbuch shlit”a, who records it along with the psak he received
once from the Chazon Ish who was extremely stringent about it (“Yehorag v’al yaavor”). He
suggests that making a slight variance, like kissing the back of her hand and not her cheek, would
have satisfied the Chazon Ish (Teshuvos V’hanhagos Vol. 4:300).

On the other hand, Rav Shmuel Wozner was presented with the question of a somewhat mentally
disabled 14-year-old boy whose mother passed away. The parents were advised previously that
they could help with his development by showering him with lots of love and affection, and his
mother used to do that. Now the father wanted to remarry. Could his new wife act in the same way
with the boy?

Rav Wozner did not permit it. The only hetter we find to touch for therapeutic purposes is to take
the pulse of a niddah. Hugs and kisses are much greater displays of closeness, and for a boy his
age and with his condition it would arouse improper thoughts. Only things like stroking his cheek
are permitted (Shevet Halevi Vol. 10:234).

One may draw a distinction between the cases of R’ Moshe and R’ Wozner. If a stepmother raised
the child from infancy, their relationship is just like a natural mother, with no inappropriate
connotations. On the other hand, if she enters his life when he is older, it bears less resemblance
to a regular mother and is more stringent.

How should an adopted child be called to the Torah?

With the name of his biological father, or his adoptive father? Piskei Teshuvos (179:4) quotes
many poskim that he must be called by his real father’s name. Otherwise it can lead to problems –
people might not realize he is adopted, or they may write his adoptive father’s name on documents
like kesubos and gittin.

The Chasam Sofer (O.C. 164) emphasizes that although adopting a child is a tremendous mitzvah,
it does not engender the obligation of kibud av v’eim to the child. He should honor them for their
efforts toward him, but it doesn’t enter the rubric of the mitzvah.

The issue he addressed was when a man died, and his natural children weren’t interested in letting
the stepson say a kaddish during davening. (Presumably they split up the kaddishim, and each one
was recited by only one person at a time.) The Chasam Sofer ruled that they were correct in their
argument. He suggested that the tzibbur add on a perek of Tehillim after davening so the stepson
could say kaddish after it. Should a stepchild keep halachos of aveilus? Rabbi Menashe Klein was

17
asked this question and he quoted the Chasam Sofer above that he does not. Certainly he should
do mitzvos l’ilui nishmas the niftar and say kaddish if there is nobody else to do it.

He references our Gemara about Abayeh, who called his adoptive parent “mother.” But he doesn’t
have to do any halachos of aveilus (Mishnah Halachos Vol. 10:153). (He refers to another teshuvah
of his, where he insists very strongly that stepparents tell them at some point that they are adopted.
If not “they will transgress the entire Torah”!)

Rabbi Moshe Shternbuch says he should carry out minhagim of aveilus (Ibid. Vol 3:374). As proof,
he cites the Mishnah in which Rabbon Gamliel accepted condolences when the servant died. They
asked him that aveilus does not pertain to non-Jewish slaves, to which he answered, “My servant
Tevi was not like other slaves; he was kosher.” The Rashba explains that Tevi became very close
to R’ Gamliel and he considered him like his own child.

Rav Shternbuch argues that an adopted child or stepson is surely in this category! He thus should
keep the halachos of aveilus, including waiting on the final day of shiva until someone comes to
be menachem him. He stresses, however, that this is a mitzvah but not the regular chiyuv of aveilus,
so any part of aveilus which detracts from halachos, like not wearing tefillin the first day and
aninus, do not apply to them.

Pleading the Fifth

Rabbi Jay Kelman writes:8

By dint of the fifth amendment to the Constitution, US citizens are protected from being forced to
give self-incriminating testimony; pleading the fifth is a common refrain in many a courtroom.

8
https://torahinmotion.org/discussions-and-blogs/yevamot-25-pleading-the-fifth

18
Jewish law goes one step further; it forbids the giving of self-incriminating evidence. Ein adam
masshem aztmo rasha, a person cannot turn himself into an evil person (Yevamot 25b). Thus, one
who admits to having killed someone cannot be convicted based on his own testimony. While we
cannot convict based on self-incriminating evidence, may we accept his testimony regarding
others? Or should we say that while we may not convict him, we also do not want to rely on
evidence of a self-confessed murderer[1]? This issue is the subject of debate of our Mishnah.
"[If one says] he died, I killed him or we killed him, he may not marry his wife [but others may].
Rabbi Yehuda says, [if he says] I killed him, [neither] he [nor others] may marry his
wife" (Yevamot 25a).
Jewish law has greatly relaxed rules of testimony regarding the death of a husband: "In order to
prevent agunot, the rabbis were lenient" (Yevamot 88a), accepting the testimony of a single
witness, or that of a relative, or even circumstantial evidence, thus freeing the women to remarry.
The Sages of our Mishnah teach that such testimony is accepted even when it is a result of someone
confessing to murder of the husband. While the "murderer" may not marry the widow, other people
may. Rav Yehuda disagrees, ruling that such a person is a rasha, evil, and the Torah warns, "Do
not extend your hand with the wicked to be an unrighteous witness" (Shemot 23:1). We are not
able to apply capital punishment, and we cannot rely on his testimony, even with regards to the
freeing of an agunah. We just can't trust the wicked. This view is most understandable.
It is the view of the Sages--allowing a woman to marry based on the testimony of the man who
claimed to kill her husband--that is most interesting. The Gemara debates whether this is a specific
leniency regarding women or reflects the laws of testimony in general.
According to the former view, that of Rav Yosef, in principle the Sages agree with Rabbi Yehuda
that one who admits murdering is an evil person who has no place in a witness box. However,
"testimony of a woman is different", and regardless of the source, absent evidence of a lie, all
testimony is accepted to free an agunah. However, if one, to use the Talmudic example, were to
claim that "so and so sodomized me with my consent", we would ignore the testimony completely.
Rav Menashe has a different explanation. Even with regard to testimony that would allow a woman
to remarry, we can only accept testimony from a (relatively) trustworthy source. So unlike other
areas of the law, we will gladly accept the testimony of a relative or even of only one witness. We
will even accept the testimony of "a thief according to rabbinical law", such as a gambler[2], to
permit an agunah to remarry. But one who is known to be a "thief according to the Torah" would
have his testimony rejected in all matters, including pertaining to a woman and remarriage.
However, in our particular case, the only evidence of wickedness is his own testimony, "I killed
him". In this case, we must invoke the rule that "a person is close to himself, and one cannot
establish himself as a sinner". We may not accept a person's testimony identifying himself[3] as
an evil murderer. But insofar as that testimony relates to others, we can accept it--as, absent
evidence from other sources of his wrongdoing, he is still a valid witness. So if one says, "I killed
so and so", we disregard the claim as it pertains to murder, but accept the claim that the husband
is dead.
This concept, known as palginun dibura ("we split his words"), is a fascinating (and somewhat
difficult) idea that has been adopted by secular law, with its distinction between evidence needed
to convict in a criminal case and as opposed to a civil one. In the former, we can only convict if

19
we are assured "beyond a reasonable doubt" of one's guilt; whereas in a civil suit, all that is needed
is "preponderance of the evidence". Thus, the exact same testimony may assign guilt and a
monetary payment but be unable to get a criminal conviction.
Only G-d is the bearer of ultimate truth. Man must live with the inherent contradictions that
abound.
[1] Unlike most secular systems of law, Jewish law only accepts testimony from people of fine character. The idea of making a
plea-bargain with a criminal is foreign to the Jewish way of thinking. We must assume that one who commits criminal acts is very
likely to lie, especially if there is personal benefit involved.
[2] Generally, a gambler's testimony is not accepted in a court of law (Sanhedrin 24b). His winnings may be considered a (rabbinic)
form of theft as, while they were won fair and square, they are given most reluctantly, and accepting such is a form of theft.
[3] Interestingly, this principle only applies in criminal law, but in matters of civil law "the admission [of guilt] of a litigant is
equivalent to one hundred witnesses" (Gittin 40b). Perhaps the difference lies in the fact that one does not own one's body and thus,
may not cause oneself to be convicted of a capital offence. However, we do own our money and can do with it as we please,
including using the court system to give it away.

Palginan Dibura

Rav Avrohom Adler writes:9

The Gemora teaches us that if Reuven testifies in Beis Din that Shimon cohabited with his wife,
and with Reuven there is another witness, we can consider them two witnesses and Shimon gets
killed. The Gemora explains that it would work only because of palginan dibura (we split his
words). Rashi explains that we accept his testimony in regard to Shimon but not in regard to his
wife, since she is related to him, and he is not a valid witness.

The Shulchan Aruch (Choshen Mishpat 34:26) has several cases where palginan dibura applies:

1) A loveh (borrower) may testify that the malveh (lender) lent money to him with interest, and
although he cannot testify on himself, we enact palginan dibura and we split his sentence. Instead
of hearing the entire testimony that the malveh lent money to him with interest, we only listen to
part of it; i.e., the malveh lent with interest (S’ma). Therefore, if there would be another witness,
Beis Din will disqualify the malveh from being believed when giving testimony in the future (an
oveir aveira is disqualify as a witness).

9
https://matzav.com/mevarchim-hachodesh-sanhedrin-10/

20
2) Reuven testifies in Beis Din that Shimon sodomized him, we invoke palginan dibura, and if
there would be another witness testifying, Beis Din will disqualify him.

3) Similarly, if Reuven testifies in Beis Din that Shimon cohabited with his wife, and there is
another witness, Beis Din will disqualify Shimon (the Shulchan Aruch doesn’t state that he gets
put to death, because the Shulchan Aruch is talking to our generation, where there isn’t any
court-imposed death penalty).

The Rashba distinguishes between the case where he says, “Shimon cohabited with my wife,”
and where he said, “I cohabited with Shimon’s wife.” In the latter case, we don’t say palginan
dibura.

4) Reuven testifies in Beis Din that Shimon sodomized Reuven’s animal, if there will be another
witness, Beis Din will disqualify Shimon. The S’ma points out that this case is different than the
above cases, since there is no such concept that Reuven is related to his animal, and therefore, in
the times of the Sanhedrin, we would kill the animal as well.

Not in all cases do we say palginan dibura. The Mordechai (Yevamos) and Tosfos in Kesuvos
(18b) rule that cases which are not common, or if you have to add a reason to his sentence, then
we don’t say palginan dibura.

Sara Ronis writes:10

Our daf continues a discussion we started yesterday about the reasons the rabbis may require a
man to divorce his wife. One reason is the circulation of persistent rumors alleging the wife’s
infidelity. Let’s start by defining “persistent”:

At what point is it considered to be a persistent rumor?

Abaye said: My mother told me: A rumor in the city lasts a day and a half. We said this only if
the rumor did not cease in the meantime. But if the rumor did cease in the meantime, even if it
was later renewed, this is a rumor that has ceased and is disregarded.

To be considered persistent, a rumor must last continuously for more than a day and a half.
Apparently then, as now, the news cycle was fast.

10
Myjewishlearning.com

21
Many of us have been taught that gossip (lashon hara) and rumors are not OK. They can spread
out of control, cause real harm and may or may not be spreading the truth. So how can the rabbis
give rumors so much power to upend peoples’ lives?!

The answer is that rumors can, in some cases, be helpful. The word that the Gemara uses for
rumor, kalah, literally means voice. And that’s what rumors often do — they give people who
don’t have an institutional voice a way to communicate widely.

Someone who has an abusive boss, for example, may not be believed by Human Resources without
extensive documentation, but can tell others who are interested in applying to work at their
company to stay away (while hopefully looking for a new job themselves!). Rumors, therefore,
are not necessarily harmful — they can be a key way that those who don’t have access to power
can protect those around them.

Many cultures associate gossip and rumors with women and people of lower classes — groups
whose voices aren’t always included equally in lawmaking, newspapers and public speeches.
These groups find other ways to communicate. It’s no accident that Abaye gets his information
about rumors from his mother! Rumors have a real social function that cannot be ignored, and the
rabbis on today’s daf recognize that fact.

But just because rumors have a social function does not mean they are not dangerous or that we
must always take them at face value. After all, rumors start and stop for all kinds of reasons that
have nothing to do with whether or not they are true. As the Gemara then nuances:

And we said that a rumor that ceased is not considered persistent only if the reason it ceased
was not due to fear. But if it ceased due to fear, it is considered persistent.

The rabbis argue that a rumor should be treated as persistent if it stopped due to intimidation,
threats or other scare tactics.

Does that mean that we need to trust all persistent rumors, and rumors that have been quashed by
fear? The Gemara continues:

And we said that a persistent rumor has validity only if he does not have any known enemies.
But if he has enemies, it is the enemies who put out the rumor.

Getting back to the case at hand, rumors of a wife’s infidelity that would trigger a divorce, the
Gemara says we need to consider the source of rumors and make sure that those spreading them
are not personally motivated by hatred of one or both members of this couple. But if personal
animus and intimidation are not at play, then yes, the Gemara insists that we do need to take rumors
seriously and end the marriage.

22
Rabbi Johnny Solomon writes:11

The Mishna (Yevamot 2:9) in our daf (Yevamot 25a) informs us that if a man brings a Jewish
divorce bill (get) from abroad and declares that it was written and signed in his presence, then that
man may not marry the woman who was the intended receiver of the divorce bill. Similarly, if
someone testifies that a married man has died, or if they testify that they themselves killed him,
they may not marry the woman whose husband they have just declared to be dead.

In terms of the final teaching in the Mishna, Rambam explains in his commentary on the Mishna
that while we follow the halachic principle of ‫ – אין אדם משים את עצמו רשע‬literally ‘a person cannot
place himself as an evildoer’ - which is the Talmudic principle rejecting self-incriminating
testimony and which means that we would not accept the testimony of someone who said that they
killed someone, nevertheless, our Sages decreed that such a person may not marry the woman
about whose husband they testified as this may inspire some men to kill the husbands of married
women towards whom they are attracted.

For some commentaries – such as Rabbi Yitzchak Minkovsky in his ‘Keren Orah’ commentary on
Yevamot 25a – the claim that this decree was established to prevent men from killing the husbands
of married women to whom they are attracted is unnecessarily cynical. Instead, he explains that
the Rambam should have simply said is that that our Sages made this decree due to the concern
that people may lie.

Yet, while what the Rambam speaks about is deeply unsettling, this does not stop it being true,
and while we may not like the fact that people can at times be lustful, vindictive and malicious,
this itself does not stop people being lustful, vindictive and malicious.

Finding the healthy balance between what we’d like people to be like while knowing what some
people can be like is not easy. But what the Rambam seems to be saying here is that when lives
may be in danger, and when there is a likelihood that people – motivated by lust – will do harm,
we need to be realistic about that possibility and, as a result, make it clear to all concerned that we
will do whatever we can to frustrate those violent plans and block those intended immoral
outcomes.

11
www.rabbijohnnysolomon.com

23
 THE TALMUDIC RULE AGAINST SELF-INCRIMINATION AND THE
AMERICAN EXCLUSIONARY RULE

A SOCIETY RULE: A SOCIETAL PROHIBITION VERSUS AN AFFIRMATIVE

INDIVIDUAL RIGHT

Suzanne Darrow- Kleinhaus writes:12

12
https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?article=1504&context=journal_of_international_and_comparative_law

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References:
https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?article=1504&context=journal_of_international_and_comparative_law

Haim Hermann Cohn writes:13

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

13
https://www.jewishvirtuallibrary.org/confession

36
these are dismissed by talmudic scholars either as confessions after trial or 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.

In the State of Israel

Menachem Elon writes:14

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

14
https://www.jewishvirtuallibrary.org/confession

37
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."

38
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 that provide different reasons for the
inadmissibility of self-incriminating confessions.15

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

15
Maim. Yad, Sanhedrin 18:6; Resp. Ribash, 233; Resp. Rashba III, 399; Radbaz on Sanh. 18, and R. Simeon Shkop on Ket. 18b,
5

39
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).

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.

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).

Rethinking Self-Incrimination, Voluntariness, and Coercion,

Through a Perspective of Jewish Law and Legal Theory

40
Samuel J. Levine writes:16

16
12 Journal of Law in Society 72 (2011)
https://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?article=1474&context=scholarlyworks

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42
43
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 Apostasy, Conversion, and Marriage: Rabbi Jacob Tam’s Ruling
Permitting the Marriage of a Female Apostate

SHALEM YAHALOM writes:17

17
Jewish History (2020) 33: 299–324, Springer Nature B.V. 2020

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 MAIMONIDES, MIRANDA, AND THE CONUNDRUM OF

CONFESSION: SELF-INCRIMINATION IN JEWISH AND

AMERICAN LEGAL TRADITIONS

B E C K Y A B R A M S G R E E N W A L D W R I T E S : 18

Introduction

Reliability and ethical concerns surrounding self-incriminating statements have plagued legal
systems for centuries. In the United States, self-incriminating statements may not be involuntarily
coerced or compelled. In the words of the Fifth Amendment, “[n]o person . . . shall be compelled
in any criminal case to be a witness against himself.”1 What are the roots of the privilege against
self-incrimination? In Miranda v. Arizona,2 Chief Justice Warren noted that the roots of the
privilege go back to ancient times. Citing the Jewish philosopher Maimonides, the Court wrote,
“[t]hirteenth 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.”’3

Given the different historical contexts in which ancient Jewish law and modern American law
emerged and functioned, it is unsurprising that concerns surrounding self-incrimination are
articulated differently in the two traditions. In Jewish criminal law, there is a seemingly complete
ban on self-incriminating statements. In contrast, the American privilege against self-incrimination
bars only involuntary or compelled self-incrimination, implying that most confessions, freely
given, would be accepted.

Scholarship has focused on the distinctions between the Jewish and American iterations of the
principle against self-incrimination.4 Scholars, for example, characterize Jewish law’s approach as
an absolute ban on confessions, contrasting it with the “timid and ineffectual” American Miranda
protections.5 They argue that, while the Jewish rule against self-incrimination was “unique and all
encompassing,”6 Miranda has been “Tuckered to death,”7 its progressive protection “all but
snuff[ed] out”8 by later decisions and exceptions. They juxtapose the Jewish rule, in which “[n]o
blurring of the bright line was permitted,” with American protections “lacking . . . a coherent
approach.”9

18
New York University Law Review, November 2014

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This Note questions whether a comparison of Jewish and American law on self-incrimination can
properly be described in such reductionist and dichotomous terms. Instead, the Note argues that
the two legal systems are similar in a certain sense. Both systems express concerns about self-
incriminating statements but also accept such statements in particularly demanding situations. Part
I traces three long-standing rationales for the privilege against self-incrimination in both Jewish
and America law: reliability; respect for the autonomy, self-determination, and privacy of the
individual; and the religious belief that criminal confessions can be offered only to G-d. After Part
I’s explanation of why self-incriminating statements are not judicially accepted, Part II describes
circumstances in Jewish and American law when self-incriminating statements are accepted.

Part III uses the comparison of the two traditions to unearth a deeper understanding of the tensions
within self-incrimination and confession. It suggests that both Jewish and American law reflect
similar conflicting desires—to encourage and also to reject self-incriminating statements. On the
one hand, confessions appear to be powerful evidence of guilt and a helpful part of the process of
solving crimes and rehabilitating criminal offenders. On the other hand, confessions
uncomfortably turn the accused into his own accuser, raising concerns about whether the
confession was the result of unreliable internal self-destructive instincts or external coercion. This
tension is also evident in the persistent cultural belief in the righteousness of confession alongside
increased interest in the DNA-based exoneration of defendants who had falsely confessed.

I. The Ideal: Rejecting Self-Incriminating Statements

A. Jewish Law
First, a word of background on Jewish law. According to Jewish tradition, the divine revelation at
Mount Sinai produced a written law (the Torah) and an oral law (summarized in the
Talmud).10 The Talmud is comprised of the Mishnah and the Gemara. The oral law was handed
down from generation to generation and memorized in order to explain the precepts of the written
law.11 However, as time went on, oral transmission became more difficult.12 The majority view is
that at the end of the second century CE, Rabbi Judah Ha-Nasi redacted the Mishnah, reducing to
writing the halakhic (“legal”) parts of the oral law.13 The Babylonian Talmud, believed to have
been compiled at the end of the fifth century CE,14 reflects the discussion that occurred in the
Babylonian academies regarding the Mishnah, “a kind of précis of the typical debates of the
talmudic sages.”15 In the post- Talmudic period, legal authorities around the world continued to
debate, interpret, and codify Biblical and Talmudic precepts. For example, Maimonides’ Mishneh
Torah,16 written in the twelfth century CE, is one of the most authoritative works published in this
post-Talmudic period.17

In this Part, I explain the sources and rationales behind the privilege against self-incrimination in
Jewish law. Maimonides described the rejection of self-incriminating statements based on the
assumption that they may be false and unreliable. However, an examination of the Talmudic
sources that predated Maimonides reveals a concern not only with reliability, but also with the
privacy and autonomy of the individual who, even if reliably guilty of some forbidden act, should
not be made to testify against himself. Finally, I present the explanation of Radbaz, a commentator
on Maimonides, who explained the privilege based on the spiritual conception that humans

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cannot—even reliably or voluntarily—surrender their bodies and souls for punishment since both
belong to G-d.

1. The Unreliability of Confessions and the Psychological Impulses of

Confessors
Moshe ben Maimon, known in Hebrew as Rambam and in English as Maimonides (1138-1204),
is one of the most important Jewish thinkers.18 He codified the privilege against self-incrimination
in the criminal context in his treatise on Jewish courts. “It is a scriptural decree that the court shall
not put a man to death or flog him on his own admission (of guilt). . . . To sum up the matter, the
principle that no man is to be declared guilty on his own admission is a divine decree.”19 Thus,
confessions in the criminal context appear to be wholly rejected.

The principle applies not only to self-incriminating statements made by defendants, but also to
self-incriminating statements made by witnesses.20 According to Jewish law, a witness is
disqualified if he is found to be a rasha, a transgressor.21 In his treatise on evidence, Maimonides
writes, “No man becomes ineligible [to be a witness] on his own admission of religious
delinquency. . . . [N]o man can incriminate himself.”22

Maimonides, in addition to codifying the rule against self-incrimination, does not just explain the
rule as a divine decree that cannot be understood.23 Rather, Maimonides offers a rationale for the
rule—at least in the context of confessions by defendants. He writes:

The Sanhedrin [court] . . . is not empowered to inflict the penalty of death or of flagellation on the
admission of the accused. For it is possible that he was confused in mind when he made the
confession. Perhaps he was one of those who are in misery, bitter in soul, who long for death,
thrust the sword into their bellies or cast themselves down from the roofs. Perhaps this was the
reason that prompted him to confess to a crime he had not committed, in order that he might be
put to death.24

Here Maimonides paints a vivid picture of the type of person who would confess to a capital crime:
someone who is unstable, depressed, and suicidal—and not necessarily guilty. According to
Maimonides, the reason behind the law against self-incrimination is that we fear the admission
may not be reliable. Maimonides believed some people suffering from intense depression might
confess to crimes they did not commit in order to bring physical harm, including death, upon
themselves.

Norman Lamm, a contemporary rabbi and past president of Yeshiva University, has expounded
on this rationale and supplemented it with insight from modern psychoanalytic theory. As Lamm
explains, Maimonides recognized what Freud, some seven hundred years later, described as the
Death Wish or Death Instinct, “an inherent tendency of life to revert to its lifeless origin, which is
the inorganic state, or death.”25 Sometimes the Death Wish results in homicide; however, if
frustrated, it may be “redirected towards the self”26 and result in suicide. Similarly, Lamm cites
Freud’s disciple, Karl Menninger, who explained that even if a person is not driven to actually take
his own life, he may display other forms of self-destruction.27 Often the internal impulses may
cause a person to relegate the destruction to a third party, in this case the court, which would

61
explain why one would confess to a crime instead of simply taking one’s own life. “Thus,” Lamm
concludes, “modern psychoanalytic theory supports Maimonides’ explanation of the Halakhic
view on self-incrimination, an explanation which relies on the universality of the instinct of self-
destruction.”28

2. Critiques Based on Moral Considerations and Respect for the Individual

In addition to Maimonides’ psychological rationale, other sources suggest additional rationales
questioning the use of confessions. The principle against self-incrimination appears in the Talmud
in the context of a debate about whether witnesses are disqualified on the basis of self-
incriminating statements. Sanhedrin 9b deals with the testimony of a potential witness who has
engaged in an illicit sexual act with the person on trial for committing the act.29 One school of
thought, attributed to Rabbi Joseph, is that if the witness testifies that the accused committed the
act with him forcibly, the witness’ testimony is accepted.30 However, if the witness admits that he
acceded to the act, the witness is a rasha, a transgressor, according to his own testimony, and is
disqualified from acting as a witness.31 In other words, according to Rabbi Joseph, a witness can
be disqualified based on self-incriminating statements.

A second school of thought, articulated by Rava, is that a person cannot disqualify himself by
establishing himself as a rasha.32 Since self-incriminating statements are rejected, the witness’
testimony against himself (that he participated in an illicit act) is not accepted, the witness is not
rendered a rasha, and his testimony regarding the defendant is accepted. Thus, he can join with
another witness in testifying against the accused. This is accomplished through the legal concept
that testimony is divisible.33 According to Rabbi Joseph, testimony is not divisible; the court
accepts all of the testimony or none of it. Rava, however, holds that testimony is divisible, and
therefore he accepts the part of the witness’ testimony that is not self-incriminating. Interestingly,
here the rejection of the self-incriminating statement by the witness leads to the inclusion of
testimony that is incriminating with regard to the defendant.34

Similarly, the Talmud in Yevamot 25a and 25b addresses the concept of splitting self-
incriminating testimony of witnesses.35 Here, the Talmud deals with the issue of a woman whose
marital status is ambiguous due to the undetermined fate of her husband.36 If her husband is found
to be dead, she is deemed a widow and may remarry. However, if her husband is alive but missing,
she is still married and cannot remarry. The Talmud deals with the case of a witness who claims
he knows the husband is dead because he (the witness) killed him. The majority view is that in
such a case, the testimony of the witness is accepted, and the woman may remarry, though she
may not marry the witness.37 However, Rabbi Judah says that if the witness testifies that he (the
witness) killed the husband, the witness’ testimony is rejected, and the woman may not remarry.38

The Talmud questions the majority approach: How can we accept the testimony of a witness who
is an admitted murderer?39 The Talmud reconciles the majority approach as one in line with the
position of Rava from Sanhedrin, namely the position of divided testimony.40 The majority holds
that the court rejects the part of the testimony that is self-incriminating—that the witness murdered
the husband—but accepts the part that is not self-incriminating—that the husband is dead.

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Both views expressed in the Talmud suggest a more complex understanding of self-incriminating
testimony than Maimonides offered. On the one hand, Rava and the majority view in Yevamot
advocate splitting testimony, accepting the part of a witness’ statement that is incriminating of
others, but rejecting the part that is self-incriminating. However if, as Maimonides suggests, the
testimony of one who confesses to committing a crime is unreliable, why do we accept any part of
the testimony? On the other hand, according to Rabbi Joseph and Rabbi Judah, if the witness makes
statements incriminating both himself and others, all of the witness’ testimony is rejected because
the testimony of a transgressor is invalid. However, by labeling the witness a transgressor, Rabbi
Joseph and Rabbi Judah show that they believe the witness’ statement that he has transgressed.41 In
other words, Rabbi Joseph and Rabbi Judah reject the testimony of a confessing witness because
they view the witness’ statement as reliable. Both of these schools of thought, then, are in contrast
to Maimonides’ view, which, as we have seen, viewed confessions as inherently unreliable.

The positions in the Talmud point to an additional reason behind the rule against self-
incrimination: that a person cannot disqualify himself from testifying by establishing himself a
transgressor because “a person is considered related to himself.”42 Testimony by relatives is not
accepted.43 Just like a person cannot testify regarding a relative, so too a person cannot testify
regarding himself, because one’s closest relative is oneself. One could argue that here again is an
argument about reliability. Just as we cannot trust the biased account of a person’s relative,44 we
cannot rely on a person’s own testimony because a person is not an objective or reliable source of
information regarding himself. However, one could also argue that the rationale here is a deeper
one: that a person cannot testify against a relative because the court should not turn family
members against one another. The law creates a separation between a person’s private family and
the public forum in which those family members must testify against the accused.

Similarly, a person cannot testify against himself because “a person is considered related to
himself” and it would be a gross encroachment on a person’s dignity to allow him to make the case
for his own physical punishment or death. As Professor Moshe Halbertal writes, “The rejection of
self-incrimination is based on the argument that the legal system should not allow someone to
harm himself through its own laws. It is about immunity from self-harm and preserving the
autonomy of the person in relationship to the legal stature.”45 According to this view, a Jewish
court does not reject confessions because they are unreliable, as Maimonides suggested, but
because of the infringement on autonomy that comes from hinging an individual’s punishment on
his own statements.

3. The Spiritual Approach: One Cannot Give What One Does Not Own
Rabbi David ben Zimra (sixteenth century CE), also known as Radbaz, offers a more spiritual
approach to the privilege against self-incrimination. According to Radbaz, criminal confessions
are problematic because they involve the surrendering of one’s life or body for punishment.46 In
Radbaz’s view, a person may confess to a civil offense and render himself liable for a monetary
punishment because a person’s money is his to give. However, a person may not confess to a crime
that would require giving up his body for punishment because his body and soul do not belong to
him. According to Radbaz, a person’s body and soul belong to G-d.47 Just as it is prohibited for a
person to take his own life, so too, a court may not kill or flog an offender based on his own
statements.

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In sum, while Maimonides was concerned about the truthfulness or accuracy of confessions, and
the Talmud appears concerned with the moral consequences of convicting a man based on his own
self-destructive testimony, Radbaz harbors a religious or spiritual concern that man cannot decide
to destroy a life that G-d has created.

B. American Law

The U.S. Supreme Court has relied on the Fifth, Sixth, and Fourteenth Amendments to delineate
the boundaries of American confession law. Based on these constitutional principles, the Court
has excluded certain self-incriminating statements made by defendants from their criminal trials.
Unlike the Jewish rule that on its face appears to exclude all confessions (“no man is to be declared
guilty on his own admission”),48 American law excludes only those self-incriminating statements
that are involuntary, coerced, or compelled. This Part examines the same three rationales from Part
I.A in the American law context.

1. The Unreliability of Coerced Confessions: Explaining Voluntariness

As in Jewish law, one of the concerns that underlie the privilege against self-incrimination in
American law is reliability. However, in the American tradition, only involuntary confessions are
seen as unreliable. In 1884, the Supreme Court recognized the common law rule prohibiting the
use of confessions obtained by inducements, promises, or threats, and explained its reliability
rationale.49 “A confession, if freely and voluntarily made, is evidence of the most satisfactory
character.” 50 However, “the presumption upon which weight is given to such evidence, namely,
that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement,
ceases when the confession appears to have been made either in consequence of inducements . . .
or because of a threat or promise . . . .”51 In other words, whereas voluntary self-incriminating
statements are reliable because they are statements against a person’s interest that have been
confessed only out of sheer and overbearing guilt about the truth of crimes committed, involuntary
confessions are the product of fear or hope and are not reliable recitations of the truth.52

Eventually, the voluntariness standard received constitutional support from the Due Process
Clause of the Fourteenth Amendment. In Brown v. Mississippi,53 a sheriff and “a number of white
men” rounded up the defendants, described as “ignorant negroes,” and declared them guilty of
murder.54 In order to secure confessions, the “defendants were made to strip and they were laid
over chairs and their backs were cut to pieces with a leather strap with buckles on it.”55 The Court
found the defendants’ confessions involuntary and therefore inadmissible because they were
secured only after brutal whipping and torture. Referring to the defendants’ “so-called
confessions”56 as “spurious”57 and “extorted,”58 the Court held that the defendants’ rights to due
process were violated because “[i]t would be difficult to conceive of methods more revolting to
the sense of justice than those taken to procure the confessions of these petitioners.”59 While the
Court was troubled by the race-based brutality and blatant due process violations that the
defendants suffered, it was also concerned that the spurious and extorted nature of the confessions
rendered them completely unreliable.60

The Court has rejected confessions produced from violence based upon reliability concerns in
other cases as well. In Stein v. New York,61 for example, the Court wrote that the tendency “to risk

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remote results of a false confession rather than suffer immediate pain is so strong that judges long
ago found it necessary to . . . treat[ ] any confession made concurrently with torture or threat of
brutality as too untrustworthy to be received as evidence of guilt.”62 The Court described the
Fourteenth Amendment as a “guarantee against conviction on inherently untrustworthy
evidence,”63 and explained that a coerced confession “vitiates a conviction because such a
confession combines the persuasiveness of apparent conclusiveness with what judicial experience
shows to be illusory and deceptive evidence.”64 Involuntary confessions are rejected, in other
words, because they may simply be false.

2. Beyond Reliability: Banning Coercive Confessions Because of

Fundamental Values and Respect for Individual Rights

In addition to the reliability thread that runs through the case law, the Supreme Court has also
offered other rationales for rejecting self-incriminating statements. Characterizing the privilege
against self-incrimination as “one of the great landmarks in man’s struggle to make himself
civilized,”65 the Court has described some of these other rationales as reflecting: “many of our
fundamental values and most noble aspirations”;66 “our sense of fair play which dictates a fair
state-individual balance . . . by requiring the government in its contest with the individual to
shoulder the entire load”;67 and “our respect for the inviolability of the human personality and of
the right of each individual to a private enclave where he may lead a private life.”68 These
rationales share an emphasis not on the questionable accuracy of confession evidence, but on the
moral responsibility of the state to respect the autonomy, self-determination, and privacy of the
individual.

For example, in determining whether confessions satisfy the Due Process voluntariness standard,
the Court has focused both on the reliability of the statement and on whether it was the product of
the defendant’s “free will.”69 The Court relied upon various fact-specific factors, such as personal
characteristics of the accused (his age, educational background, mental abilities)70 and the level of
deprivation or mistreatment by the police (including physical and psychological pressure)71 to
decide whether the confession was voluntarily and freely offered by the defendant. Here, the
emphasis is less on reliability and more on the moral belief that “men are not to be exploited for
the information necessary to condemn them.”72 It is the state, not the defendant citizen, who must
“produce the evidence against him by the independent labor of its officers, not by the simple, cruel
expedient of forcing it from his own lips.”73 This is similar to the argument we extrapolated from
the Talmud in Part I.A.2, namely, that the privilege against self-incrimination preserves the
autonomy of the person in relation to the legal system.

In 1966, in the watershed decision of Miranda v. Arizona,74 the Supreme Court “declared that the
Fifth Amendment is the touchstone for determining the admissibility of any statements obtained
through custodial interrogation by government officials.”75 The Fifth Amendment states, “[n]o
person . . . shall be compelled in any criminal case to be a witness against himself.”76 The Miranda
Court held that when a person is taken into custody and interrogated by the police, any self-
incriminating statements are inherently compelled unless the suspect is given certain
warnings.77 The warnings that the Court required are the now-famous right to remain silent, right
to know that statements made can be used in a court of law, and right to an attorney, either retained
or appointed.78 Thus, instead of having to dissect a suspect’s state of mind under a Due Process

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Clause voluntariness analysis, the Court set a bright line rule—the need for police to articulate
specific warnings—that would be easier to apply.

A cursory look at Miranda and the Fifth Amendment reveals a strikingly different general principle
than the one articulated in Jewish law. Although the Fifth Amendment only prohibits compelled
self-incrimination (no one may be compelled to testify against himself), Jewish law is articulated
as a blanket rejection of all self-incriminations (no one is to be declared guilty on his own
admission). However, a closer look at Miranda reveals a more similar schema. Specifically, the
Miranda Court assumed that all custodial interrogations were coercive environments, and therefore
that all incriminating statements made by suspects in the course of custodial interrogations (in the
absence of warnings) were coerced and inadmissible.79 A ban on all self-incriminating statements
made during custodial interrogation sounds quite similar to a ban on confessions generally.

Moreover, it is possible that the Miranda Court assumed that by requiring police to warn every
suspect in clear and unequivocal terms of his right to silence80 and to counsel,81 suspects would,
on the whole, cease making self-incriminating statements altogether. Indeed, in Justice Harlan’s
dissent in Miranda, he argued that “the new rules are not designed to guard against police brutality
or other unmistakably banned forms of coercion . . . . Rather, the thrust of the new rules is to negate
all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any
confession at all.”82 Similarly, Justice White wrote in dissent:

The obvious underpinning of the Court’s decision is a deep-seated distrust of all confessions.
As the Court declares that the accused may not be interrogated without counsel present, absent
a waiver of the right to counsel, and as the Court all but admonishes the lawyer to advise the
accused to remain silent, the result adds up to a judicial judgment that evidence from the
accused should not be used against him in any way, whether compelled or not . . . that it is
inherently wrong for the police to gather evidence from the accused himself.83

Of course, the dissenters’ vision of Miranda is not universally accepted. The Miranda majority
itself wrote explicitly, “[W]e does not purport to find all confessions inadmissible. Confessions
remain a proper element in law enforcement.”84 Nevertheless, it would be plausible and logical to
assume that by rendering all custodial interrogations coercive and ordering police to clearly warn
defendants of their right to silence and counsel, Miranda would drastically reduce the number of
confessions obtained in criminal prosecutions.

Upon closer inspection, it appears the Jewish and American rules on self-incrimination are similar
in that they both reflect a strong hesitance toward using confessions as evidence against the
accused. Underlying the Court’s resistance to confession is a restatement of the self-determination
rationale. Its focus is on the right of the individual against the state.85 The privilege is a
“substantive right,”86 and reflects the “respect a government—state or federal—must accord to the
dignity and integrity of its citizens.”87 Thus, while the language of the Fifth Amendment prohibits
only compelled self-incrimination, in Miranda, the Court revealed its discomfort with accepting
self-incriminating statements more generally.

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3. The Religious or Spiritual Approach
The privilege against self-incrimination in American law has been explained in spiritual and
religious terms as well. Abe Fortas, before becoming a Supreme Court Justice, described the
privilege as recognition that every person is “entitled to treatment as an individual in G-d’s image,
and not merely as a vessel of the state.”88 Just as Radbaz felt that a person’s body and soul were
not his to give, Fortas writes that a person’s life is his “inviolable temple.”89 He describes the
privilege as intangible, just like “man’s immortal soul.”90 For Fortas, confession is so deeply
private and powerful that it belongs only in a private exchange with G-d. “A man may be punished,
even put to death, by the state; but . . . he should not be made to prostrate himself before its majesty.
Mea culpa belongs to a man and his G-d. It is a plea that cannot be exacted from free men by
human authority.”91

Similarly, scholars have also described the rationale behind the privilege in religious or spiritual
terms. For example, Robert Gerstein has described the substance of confessions as “a special sort
of information,” including “the admission of wrongdoing, the self-condemnation, the revelation of
remorse.”92 According to Gerstein, these revelations should be regarded as “a matter between a
man and his conscience or his G-d,” just as a person’s religious opinions are regarded as between
himself and his G-d.93 Gerstein analogizes self-condemnation in criminal law to self-
condemnation in religious experience, where he identifies a similar emphasis on the privacy of
confessions.94 In this context, he cites Puritan leaders in the late sixteenth century who decried the
practice of public confession: “Much more is it equall that a man’s owne private faults should
remayne private to G-d and him selfe till the L-rd discover them . . . the magistrate should [[not]
seeke into the offenses of his subjects and not by oathe to rifle the secretts of theare hearts.”95

II. Confronting Reality: Exceptions When Self-Incriminating Statements Are

Accepted

A. Jewish Law
Although the Jewish rule on self-incrimination appears to be a blanket ban on confessions, this
Part will explore various exceptions to the rule that have been utilized throughout history, namely
the royal prerogative, the emergency exception, and the existence of corroborating evidence.

1. Royal Prerogative
Although some commentators locate biblical support for the privilege against self-
incrimination,96 the Bible also contains examples of individuals who are punished based on self-
incriminating statements. For example, in 2 Samuel chapter one, the story is told about an
Amalekite who recounts to David a narrative of King Saul’s death.97 After battle, the Amalekite
appears before David and says that Saul and Saul’s son Jonathan are dead:

I happened to be at Mount Gilboa, and I saw Saul leaning on his spear, and the chariots and
horsemen closing in on him. He looked around and saw me, and he called to me. When I
responded, ‘At your service,’ he asked me, ‘Who are you?’ And I told him that I was an
Amalekite. Then he said to me, ‘Stand over me, and finish me off, for I am in agony and am

67
barely alive.’ So I stood over him and finished him off . . . . Then I took the crown from his head
and the armlet from his arm, and I have brought them here to my lord.98

Immediately upon hearing the news, David weeps, mourns, and rebukes the young man for daring
to kill King Saul.99 Thereupon, David orders his attendant to kill the Amalekite, and says, “Your
blood be on your own head! Your own mouth testified against you when you said, ‘I put the L-rd’s
anointed to death.”’100

While David seems to have been convinced of the reliability of the confessing bearer of bad news,
the reader of the story will know that in the previous chapter, the death of Saul was recounted
differently:

Saul said to his arms-bearer, ‘Draw your sword and run me through, so that the uncircumcised
may not run me through and play sports of me.’ But his arms-bearer, in his great awe, refused;
whereupon Saul grasped the sword and fell upon it. When his arms-bearer saw that Saul was dead,
he too fell on his sword and died with him.101

Here we may see, as Maimonides feared, that one of the fundamental problems with confessions
is their unreliability.

The story of King David and the Amalekite allows us to explore several situations in which Jewish
law allows acceptance of self-incriminating statements. Many commentators are quick to point out
that there are various exceptions to the general rule against self-incrimination that could justify
David’s actions. One explanation is that David was not bound by the ordinary rules of criminal
procedure because he was a king.102 Some rabbis relied upon this royal prerogative exception in
the context of medieval Spain where the Spanish king gave Jewish communities the authority to
adjudicate disputes between Jewish litigants.103 In that time, the problem of Jewish informers,
individual Jews who would submit allegations about other Jews to the secular authorities, posed a
most serious danger to the Jewish community.104 A report by a Jewish informer could bring fines
and even expulsion upon an entire Jewish community.105 It was in the case of one such informer
that Shlomo ben Aderet (1235-1310), known as Rashba, used the “law of the king” reasoning to
allow a loosening of the laws regarding acceptable evidence in a Jewish court. He writes:
“[P]unishment is meted out by royal prerogative even on the basis of the testimony of relatives
and even on the basis of the confession of the accused himself . . . for royal justice seeks the truth
only (regardless of procedure).”106 “For if you do not grant this,” Rashba continues, “but insist
strictly upon Torah law as fulfilled by the Sanhedrin [the chief Jewish court], the world would be
destroyed.”107

Rashba was able to use the exception of royal justice to suspend some of the traditional
requirements of criminal procedure required by Jewish law. His language, though, also hints that
the strict traditional rules were intended to be circumvented in certain situations. The rules, in other
words, reflected an ideal: a judicial system in which no one ever had to be put to death. As Rashba
notes, the Rabbinic sages had said that “Every Sanhedrin that executes two times is called a
murderous [court].”108 And yet, a reality also existed in which dangerous crimes took place, and
Jewish leaders needed to be able to respond. David did not have to stand by when a man confessed
to murdering an Israelite king, and Rashba did not have his hands tied when the Jewish community
of medieval Spain needed a way to deal effectively with informers who would bring destruction

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upon the community. While as a general rule self-incriminating statements were rejected, in
circumstances such as these, they were allowed.

2. Emergency Exception
A second explanation of David’s actions and second exception to the rule against self-
incrimination is that David was acting in the case of an emergency.109 The Talmud says that as a
rule, a court has the authority to impose extralegal penalties when the times demand it.110 This
exception was also relied upon in medieval Spain. For example, Rabbi Isaac ben Shesheth Barfat
[Perfet] (1326-1408), known as Ribash, expounded on the emergency doctrine in a letter to the
officials of the Jewish community of Teurel, a city in the province of Aragon. The communal
leaders wrote to Ribash regarding a Jewish informer who had confessed to reporting to the secular
authorities. Ribash recognized that in capital cases, “according to the strict letter of the law no
heed is paid to a confession . . . and his confession makes no difference.”111 However, he writes,
in light of the “emergency needs of the times,” and since “the times demand it,” the Jewish court
may impose flagellation and pronounce capital sentences “even without full [Talmudically
required] evidence.”112

As Ribash also notes in his letter, the very fact that the Jewish court was meting out punishments
of flagellation and the death penalty at that time was because of the emergency doctrine. “[T]he
fact that we do judge capital cases in these times, although capital jurisdiction has been suspended
[Talmudically] is due to the emergency needs of the times.”113 Thus, the emergency exception was
one that “permeated the judicial procedure of the authorities combatting crimes which were
regarded as serious breaches of morality and public order” when the times demanded it.114 As with
the royal prerogative exception, the emergency exception seems a realistic acknowledgment that
no rule is ever appropriate at all times and places.

3. Corroborating Evidence
A third explanation of David’s actions in the Bible and an exception to the general rule against
self-incrimination is that the case of the confessing Amalekite contained corroborating evidence—
Saul’s crown and armlet. A similar case is found in 2 Samuel, chapter four, where David condemns
two men to death on the basis of their admission to killing Ish-bosheth. When the two men, Rechab
and Baanah, bring the head of Ish-bosheth to David, David responds by putting them to
death.115 Here too we have a case of punishment based on self-incriminating statements, but with
the added indicia of reliability of corroborating evidence—in this case the decapitated head of the
victim.

Indeed, in modern day Israel (which, although a secular system, is informed by Jewish tradition)
the rule is that a confession must be supplemented by an additional element of corroboration in
order to convict a defendant.116 In Al Bahiri v. State of Israel, Chief Justice Menachem Elon
explained that the reason for the requirement that to suffice for a conviction there be “something
in addition” to a defendant’s confession is to counteract Maimonides’ fear that “there may have
been ‘internal pressure’ on the defendant, who may blame himself for a crime that someone else
has committed.”117 Elon explained the modern rule as an outgrowth of the traditional Jewish rule.
He wrote that while Jewish law originally “maintained that a defendant’s self-incriminating

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confession was absolutely inadmissible,” over 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.”118 One of these major changes was the ability to convict a defendant based upon his
confession, but only if there was “some measure of corroboration to support the veracity of the
confession.”119

As with the other exceptions, the acceptance of confessions when accompanied by corroborating
evidence seems to be a compromise approach that was meant to admit confessions when the court
could be satisfied as to the reliability of the confession.120 According to Elon, “This approach
seems most appropriate both in terms of justice to the defendant, who should not be convicted if
innocent, and in terms of finding the truly guilty parties, who should not be allowed to escape the
legally prescribed punishment.”121 While the existence of corroboration might satisfy
Maimonides’ accuracy concerns, it would not rebut the other rationales underlying the privilege
against self-incrimination, namely, a person’s inalienable right to privacy and autonomy, and the
religious problems with allowing a person to take his own life via the criminal system.

To sum up, the basic Jewish law is that no one may be convicted on the basis of his confession.
However, over time, the rule has been interpreted malleably in certain instances. Confessions were
accepted based on royal authority, in times of emergency, and when enough other corroborating
evidence was available.122 Interestingly, the exceptions were treated less like deviations and more
like a reflection that Jewish law itself seems to expect and authorize the exceptions when necessary
to meet overriding goals.123

B. American Law
Although many viewed Miranda as a radical decision, and it created a bright line rule of exclusion
for statements made by suspects in custodial interrogation not preceded by warnings and waiver,
many further exceptions to the rule against self-incrimination beyond those enumerated in Miranda
have developed. Some even argue that the exceptions have swallowed the rule.124 Empirical
studies have also shown that Miranda has had little effect on the overall ability of the police to
obtain confessions.125 This section will explore three exceptions to the Miranda exclusionary rule:
impeachment, emergency, and the Miranda-endorsed exception of waiver. These exceptions
describe situations in which self-incriminating statements made by a suspect during custodial
interrogation without sufficient warnings can be used in court.126

1. Impeachment
In Harris v. New York the Court limited Miranda by holding that while a defendant’s Miranda-
defective self-incriminating statements may not be used in the government’s case-in-chief, those
statements may be used to impeach the credibility of a defendant who chooses to testify.127 In
Harris, for example, the police had failed to warn the defendant of his right to counsel before
interrogating him.128 Therefore, while the defendant’s subsequent incriminating statement could
not be used as substantive proof of the offense of selling drugs, his statement was lawfully raised
by the prosecution in its cross-examination of Harris.129 The Court justified the decision by stating
that, “[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of
a defense, free from the risk of confrontation with prior inconsistent utterances.”130

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Harris’ impeachment exception to Miranda is significant because impeachment evidence can be
misconstrued as substantive evidence by juries.131 Thus, a defendant who has made a Miranda-
defective confession is faced with a dilemma. Either the defendant may choose to testify on his
own behalf, knowing that his confession may be read in court—even though it was offered without
the proper Miranda warnings—or he may choose not to testify and face a greater chance of
conviction.132

2. Emergency
The emergency exception allows officers to question a suspect without Miranda warnings in the
case of an emergency. Any incriminating statements that a defendant makes can then be used
against him in court, even though Miranda warnings were not given. For example, in New York
v. Quarles, two officers were approached by a woman who said she had been raped by a man
carrying a gun.133 With the victim’s assistance, the police were able to locate a suspect in a nearby
supermarket.134 While apprehending the suspect, the officer noticed the suspect’s shoulder holster
was empty and asked him where the gun was.135 The suspect gestured toward some empty cartons
and said, “the gun is over there.”136 The police uncovered the gun from one of the cartons. The
defendant’s response to the officer’s question was later used at his trial. The Court, citing
“overriding considerations of public safety,”137 held that the officer was allowed to ask Quarles
about the gun without warnings because the officer “needed an answer to his question not simply
to make his case against Quarles but to ensure that further danger to the public did not result from
the concealment of the gun in a public area.”138

3. Waiver

Perhaps the biggest limitation to Miranda protection of criminal defendants—found in the Miranda
decision itself—is that Miranda rights are waivable. Once a defendant waives his rights, any of his
subsequent self-incriminating statements can be used in court, as long as the government can show
that the waiver was voluntary, knowing, and intelligent.139 In determining the boundaries of
voluntary, knowing, and intelligent waivers, the Court has held that a defendant does not have to
know the subject of the interrogation in order to waive.140 Additionally, the Court has held that a
defendant can validly waive his right to counsel, and his confession can be admitted, even though
he was not told that an attorney hired by a family member was trying to contact him.141

The Court has found that a defendant waives his right to silence or to an attorney just by talking to
the police.142 If a defendant wishes to invoke, rather than waive, his right to silence or counsel, the
invocation must be “unambiguous” and “unequivocal.”143 This means, as Justice Sotomayor
pointed out in a stinging dissent in Berghuis v. Thompkins, that a suspect who wishes to invoke
his right to remain silent must “counterintuitively, speak—and must do so with sufficient precision
to satisfy a clear-statement rule that construes ambiguity in favor of the police.”144

Finally, according to the language of Miranda, once a defendant invokes his right to silence or
counsel, interrogation must cease.145 However, subsequent case law has established that after a
defendant invokes his right to silence, the police can continue to interrogate him after waiting two
hours.146

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III. Dueling Interests: Explaining the Comparison

While scholars have focused on the differences between the Jewish and American perspectives on
self-incrimination, and some have pointed out ways in which the lessons of one tradition should
be extended to the other,147 this Note has highlighted certain similarities. Part I illustrated the
parallels between the rationales offered for the privilege against self-incrimination in both systems.
Both traditions express concerns about the reliability of confessions, as well as the human dignity
and privacy concerns that arise when a person’s word is used to convict him. Both traditions also
contain strains of an argument that confession is so inherently private that it belongs in the realm
of thoughts shared only with G-d. This Note has also argued that a broad reading of the Miranda
decision, as envisioned by the dissents and perhaps even by the majority, looks similar to the
Jewish ban on confession.148

Part II described how, in both Jewish and American law, some jurists have relaxed the rules
rejecting or limiting self-incriminating evidence, allowing more expansive forms of self-
incriminating testimony to be considered in certain instances. Exceptions were made to the Jewish
ban on confessions in cases of exigency, royal prerogative, and where corroborating evidence was
available. So too, in American law, the Supreme Court created a number of exceptions to
Miranda’s supposedly bright line rule of exclusion by allowing incriminating statements to be used
in the cases of impeachment, exigency, and waiver.

While the similarities between Jewish and American law are intriguing and previously under-
explored, I am careful not to overstate them. To start, the heritages of the two traditions are quite
different. Jewish law has a three-thousand-year history during which Jews have lived in varying
degrees of autonomy and political subservience, and in geographic areas across the globe. The
American Constitution, by contrast, is less than three hundred years old, and is operational in U.S.
courtrooms every day.149 Moreover, the two rules are not identical. The Jewish approach derives
from the principle that no one may render himself guilty on his own admission, which is certainly
distinct from the American principle, that focuses on ensuring that confessions are voluntary and
uncompelled. The exceptions to the Jewish and American rules are also distinct. While the Jewish
exceptions from the Middle Ages related to Jewish informers,150 a limited problem that posed
extreme danger to the Jewish community, the American exceptions to the privilege against self-
incrimination have more sweeping consequences. Most basically, for example, the waivability of
Miranda rights, recognized by the Miranda Court itself, is a profound limitation on the rights to
silence and to counsel.

This Note argues that both Jewish and American law—operating in markedly different times,
places, and contexts—reflect a simultaneous attraction toward and repulsion from self-
incriminating statements, revealing a tension inherent in the subject of confession. Underlying the
complex history of the right against self-incrimination is “the law’s semi-conscious struggle to
come to terms with the difficult, layered, perplexing notion of the speech-act that follows from the
statement ‘I confess.”’151

The tension within confession law represents two different ways of looking at confessions. On the
one hand, some view confession as an act that should be encouraged. They believe that through
confession comes self-recognition, reflection, and hopefully reformation and rehabilitation.152 On

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the other hand, some view confessions as extremely intimate and private,153 as well as suspicious
and vulnerable to elicitation through coercion.154 These two visions of confession are ever-present
and always in tension, and this struggle is reflected in the law.

For some, confessions are virtuous. Justice Scalia, for example, in a scathing dissent in Minnick
v. Mississippi,155 felt that “even if I were to concede that an honest confession is a foolish mistake,
I would welcome rather than reject it.”156 “More fundamentally,” he writes, “it is wrong, and subtly
corrosive of our criminal justice system, to regard an honest confession as a ‘mistake.’ While every
person is entitled to stand silent, it is more virtuous for the wrongdoer to admit his offense and
accept the punishment he deserves.”157 For Justice Scalia, confessions are desirable because they
show that a person takes responsibility for his actions and recognizes his shortcomings in an effort
to “do what is right.”158 According to Justice Scalia, we should “rejoice at an honest confession,
rather than pity the ‘poor fool’ who has made it; and we should regret the attempted retraction of
that good act, rather than seek to facilitate and encourage it.”159

Justice Scalia’s view of confession is apparent in other aspects of American law and culture as
well. As his dissent notes, the U.S. Sentencing Guidelines allow for a reduction in sentence if a
defendant accepts responsibility for his actions and aids the government in its
investigation.160 Similarly, it is a common belief that if one makes a mistake or commits a bad act,
the best course of action is to come clean and tell the truth.161 “Confession of misdeeds has become
part of the everyday pedagogy of Western societies, normally with the understanding that
recalcitrance in confession will aggravate punishment, while full confession will both cleanse the
soul and provide possible mitigation of sanctions.”162 One need only turn on any television channel
to view someone—either fictional or not—confessing to a misdeed.163

This redemptive view of confession is apparent in Jewish tradition as well. At the beginning of the
Book of Genesis, a number of people commit sins. First, Adam eats from the tree of knowledge,
the only tree that was forbidden to him in the Garden of Eden.164 Later, Adam’s son, Cain, kills
his brother Abel.165 Adam’s reaction when confronted about his sin is to shift blame to Eve: “The
woman You put at my side—she gave me of the tree, and I ate.”166 However, according to some
traditions, unlike Adam’s passing the buck, Cain’s response to his crime and punishment is
confession and repentance.167 A fascinating midrash, a rabbinic text, recounts an interaction
between Adam and Cain, father-and-son criminals as it were.168 According to the story, Cain
appeared happy. His father asked him, “What happened with your judgment?” Cain responded, “I
repented and am reconciled.” Suddenly Adam begins beating his head and exclaims, “How
awesome is the power of repentance, and I did not know!”169 The midrash underscores the power
and importance of repentance and highlights the cathartic and rehabilitative effect that confession
and repentance can provide.170

However, despite the possibly cathartic effect of confessions, both American and Jewish traditions
contain other viewpoints heavy with the awareness that confessions can also be both undesirable
and lethally misleading.171 In Escobedo v. Illinois,172 the Court noted that “a system of criminal
law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable
and more subject to abuses than a system which depends on extrinsic evidence independently
secured through skillful investigation.”173 First, reliance on confessions—which are such powerful
pieces of evidence—can lead to insufficient investigation of the crime and inadequate exploration
of other evidence and suspects.174 Second, reliance on confessions can encourage police

73
misconduct. “The simple and peaceful process of questioning breeds a readiness to resort to
bullying and to physical force and torture. If there is a right to an answer, there soon seems to be
a right to the expected answer—that is, to a confession of guilt.”175 A well-intentioned use of the
seemingly incontrovertible evidence of confession, the reasoning goes, can grow into a system of
abuse.176 Therefore, according to the Court, “[A]ny system of administration which permits the
prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer
morally thereby.”177 The Court’s conclusions echo the centuries of both American and Jewish
concern that systems founded on self-incriminating statements may prove fatally, fundamentally
unsound.

Such concerns have been bolstered in recent years by advancements in the fields of scientific DNA
analysis and psychology. According to the Innocence Project, there have been 316 convictions
overturned in the United States based on DNA evidence.178 In approximately 25% of those cases,
“innocent defendants made incriminating statements, delivered outright confessions or pled
guilty.”179 In addition to the irrational self-destructive tendencies of the human psyche,180 scholars
have attributed false confessions to psychological techniques used by police officers, which can
cause even innocent people to confess.181 According to Professors Richard Ofshe and Richard Leo,
psychological interrogation techniques limit and control the alternatives available to suspects, and
then rely on the natural human tendency to make “optimizing choices” given the available
alternatives.182 In addition, the literature highlights that vulnerable populations—such as children
and the mentally ill—are especially likely to falsely confess because they have undeveloped
judgment, cannot fully appreciate and evaluate risks in decision-making, are easily persuaded, and
are eager to please authority figures.183

In sum, we are left with two ways of viewing confessions: as statements that provide important
details about the commission of a crime and reflect a positive acceptance of responsibility by a
defendant; and as unreliable statements that are too often attained by manipulation. Our sense of
what confession is and does “hovers in a zone of uncertainty that has much to do with the multiform
nature of confession and its uses for cleansing, amelioration, conversion, counseling, as well as
conviction.”184 As legal understanding moves ever forward, jurists must grapple with self-
incriminating statements while keeping sight of this tension. Future decisions involving self-
incriminating statements must be made with an awareness of the benefits of utilizing self-
incriminating statements but also of the hesitations that have animated both traditions regarding
such statements.

Conclusion
This Note has shown how two disparate legal systems struggle to strike a fair balance in applying
the privilege against self-incrimination. On the one hand, there are many reasons to reject self-
incriminating evidence—suspicions of unreliability, respect for personal integrity, the need for
boundaries between state and individual, and the exceedingly private and self-destructive nature
of confessions. On the other hand, self-incriminating evidence may be the missing piece in solving
the puzzle of a crime. Weighed against the values of protecting the innocent and respecting the
dignity of defendants are the values of reaching justice on behalf of victims and protecting society
from perpetrators of violence. In addition, confessions can enable guilty defendants to admit their
crimes and begin the process of rehabilitation. An examination of the American and Jewish legal

74
systems reveals that, whichever values take precedence in a particular case, the decision whether
to admit or reject a confession will always involve a conundrum: Do we believe the confessor that
he has raped, murdered, or stolen but assert that he is now telling the truth? Or do we refuse to
accept that he is a rapist, murderer, or thief but find him to be liar?185

Endnotes
1. U.S. CONST. AMEND. V.

2. 384 U.S. 436 (1966).

3. Id. at 458 n.27 (quoting THE CODE OF MAIMONIDES, BOOK 14: THE BOOK OF JUDGES, Sanhedrin ch. 18,
para. 6).

4. See, e.g., LEONARD W. LEVY, ORIGINS OF THE FIFTH AMENDMENT: THE RIGHT AGAINST SELF-
INCRIMINATION 434 (1968) (“In Anglo-American jurisprudence the right exists only with respect to compulsory
self-incrimination…. The rule of the Talmud was quite different.”); Irene Merker Rosenberg & Yale L. Rosenberg, In
the Beginning: The Talmudic Rule Against Self Incrimination, 63 N.Y.U. L. REV. 955, 956 (1988) (“One way to
rethink the problem of confessions and to gain new perspectives is to compare the modern American approach with one
from the past, one that appears to be almost totally antithetical in conception and application [i.e., the Jewish rule].”);
Suzanne Darrow-Kleinhaus, The Talmudic Rule Against Self-Incrimination and the American Exclusionary Rule: A
Societal Prohibition Versus an Affirmative Individual Right, 21 N.Y.L. SCH. J. INT’L & COMP. L. 205, 207 (2002)
(“For while the Talmudic rule and the American rule appear to be strikingly similar, they are in fact fundamentally
different.”).

5. Rosenberg & Rosenberg, supra note 4, at 955-64.

6. Id. at 964.

7. Id. at 956 (referring to Michigan v. Tucker, 417 U.S. 433 (1974), in which the Court held that statements by a witness
implicating the defendant were admissible even though the police were led to the witness by Miranda-defective
statements by the defendant).

8. Id. at 959.

9. Id. at 1045, 964.

10. MENACHEM ELON ET AL., JEWISH LAW (MISHPAT IVRI) 5 (1999); ADIN STEINSALTZ, THE ESSENTIAL
TALMUD 3-4 (Chaya Galai trans., 1976).

11. STEINSALTZ, supra note 10, at 13.

12. ELON ET AL., supra note 10, at 6; see also STEINSALTZ, supra note 10, at 33 (explaining the reasons for the
compilation of the Mishnah).

13. ELON ET AL., supra note 10, at 8; see also David C. Flatto, The King and I: The Separation of Powers in Early
Hebraic Political Theory, 20 YALE J.L. & HUMAN. 61, 66 (2008) (“[The Mishnah] is a kind of digest of early
rabbinic law that presumably functioned as a legal anthology or code for judges, teachers, and the larger traditional
population.”).

14. ELON ET AL., supra note 10. Another version of the Talmud, known as the Jerusalem Talmud, was composed in the
Land of Israel at the end of the fourth century CE. Id.

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15. STEINSALTZ, supra note 10, at 61. For more information about the Talmud—including its origin, history, printing,
reception, commentaries, and methodologies of study—see the collection of excellent essays in PRINTING THE
TALMUD: FROM BOMBERG TO SCHOTTENSTEIN (Sharon Liberman Mintz & Gabriel M. Goldstein eds., 2005).

16. Discussed infra–Part I.A.1.

17. See, e.g., ISADORE TWERSKY, INTRODUCTION TO THE CODE OF MAIMONIDES (MISHNEH TORAH)) 20
(1980) (“[The Mishneh Torah is] unprecedented in terms of scope and structure, and… is decidedly unique in its
multifaceted influence. In one broad generalization, we may say that the Mishneh Torah became a prism through which
reflection and analysis of virtually all subsequent Talmud study had to pass.”).

18. See generally MOSHE HALBERTAL, MAIMONIDES: LIFE AND THOUGHT 3-4 (Joel Linsider trans., 2014) (“The
oft-stated comparison between Moses’ son of Maimon and Moses our Teacher (that is, the biblical Moses)… is no
exaggeration and contains more than a kernel of truth…. Maimonides belonged to the rare and unique species of
religious reformers—even, one may say, of religious founders.”).

19. THE CODE OF MAIMONIDES, BOOK FOURTEEN: THE BOOK OF JUDGES, Sanhedrin ch. 18, para. 6, at 52-53
(Abraham M. Hershman trans., Yale Univ. Press 1977) [[hereinafter MAIMONIDES: JUDGES].

20. But see Arnold Enker, Self-Incrimination in Jewish Law—A Review-Essay, in 4 DINÉ ISRAEL cvii, cix (Zeev W.
Falk & Aaron Kirschenbaum eds., 1973) (“[F]rom a legal point of view these two rules [the one concerning self-
incriminating statements of defendants and the other concerning self-incriminating statements of witnesses] seem to me
to raise completely different problems and to relate to totally different situations.”).

21. See 1 TALMUD BAVLI, Sanhedrin 24b-25a (Hersh Goldwurm ed., Mesorah Publications 1st ed. 1993).

22. MAIMONIDES: JUDGES, supra note 19, Evidence ch. 12, para. 2, at 108.

23. Many interpret the term “scriptural decree,” which Maimonides uses here to describe the privilege against self-
incrimination, to describe “a rule of law for which human beings are incapable of discerning a rationale.” Rosenberg &
Rosenberg, supra note 4, at 1033. Such an explanation of the term “scriptural decree” in this context would seem odd,
since Maimonides specifically offers a rationale for the rule. Yair Lorberbaum offers a more complete understanding of
the term and differentiates between two meanings of “scriptural decree.” The first is a theological meaning that does
indicate that a rule has no rationale or that the rationale is unknown. However, the second meaning of “scriptural
decree,” according to Lorberbaum, is a jurisprudential meaning that indicates that the commandment being described
does have a rationale, but that the commandment is “imperative” and “unconditional” and must be followed even when
the rationale does not appear to apply. Yair Lorberbaum, Two Concepts of Gezerat ha-Katuv: A Chapter in
Maimonides’s Legal and Halakhic Thought, Part I, in 28 DINÉ ISRAEL 123, 124 (Arye Edrei & Suzanne Last Stone
eds., 2011); Yair Lorberbaum, Two Concepts of Gezerat ha-Katuv: A Chapter in Maimonides’s Legal and Halakhic
Thought, Part II: The Jurisprudential Sense, in 29 DINÉ ISRAEL 101, 102-03 (Arye Edrei & Suzanne Last Stone eds.,
2013).

24. MAIMONIDES: JUDGES, supra note 19, ch. 18, para. 6, at 52-53.

25. Norman Lamm, The Fifth Amendment and Its Equivalent in the Halakha, 5 JUDAISM 53, 56 (1956). The Supreme
Court twice cited this article and a subsequent version of the same: in footnote twenty-seven in the Miranda decision
and in footnote five in Garrity v. New Jersey, 385 U.S. 493, 497 n.5 (1967).

26. Lamm, supra note 25.

27. Id. at 57.

28. Id.

29. For English translation and explanation, see Sanhedrin 9b in 1 TALMUD BAVLI, supra note 21.

30. Id.

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31. Id.

32. Id.

33. Id. at n.20.

34. See Enker, supra note 20, at cix (“The rule rejecting a defendant’s confession, then, results in the exclusion of
otherwise probative evidence while the consequence of the rule rejecting a witness’ confession is the inclusion of
probative evidence that would otherwise have been excluded.”).

35. For English translation and explanation, see 1 TALMUD BAVLI, Yevamot 25a-b (Yisroel Simcha Schorr & Chaim
Malinowitz eds., Mesorah Publications 1st ed. 1999).

36. Id. at 25a.

37. Id.

38. Id.

39. Id. at 25b.

40. Id. at n.2.

41. Professor Moshe Halbertal has described this as the “crook paradox.” If you believe the witness, he is a murderer; if
you don’t believe the witness, he is a liar. Either way his testimony is specious. Halbertal notes that a similar element of
self-contradiction is inherent in every confession. Moshe Halbertal, Annual Caroline and Joseph S. Gruss Lecture at
New York University School of Law: Confession, Self-Incrimination, and Repentance in Jewish Law 6 (Spring 2004),
available at http:// www.nyutikvah.org/gruss/documents/Confession.pdf.

42. 1 TALMUD BAVLI, Sanhedrin 9b, supra note 21.

43. See Deuteronomy 24:16 (“Parents shall not be put to death for children, nor children be put to death for parents: a
person shall be put to death only for his own crime.”). Rashi, an eleventh-century biblical commentator, explains that
this means that fathers shall not be put to death by the testimony of sons, and vice versa. 5 RASHI, COMMENTARY
ON THE TORAH, Deuteronomy 24:16, at 253 (Yisrael Isser Zvi Herczeg trans., Mesorah Publications 1998). See also
1 TALMUD BAVLI, Sanhedrin 27b, supra note 21 (specifying which relatives are disqualified).

44. According to the Sefer Hahinukh, a thirteenth-century work, the testimony of relatives is rejected based on reliability
concerns.
G-d… wished that human justice should be executed only on the basis of the strongest and most authentic evidence,
above all suspicion. To this end He disqualified the testimony of all relatives…. Relatives are often together, and in
each other’s way. It is impossible that they should not occasionally fall out and if we were to believe their evidence
against each other, perhaps prompted by the anger of the moment, they would betake themselves to the judge who
would be off with their heads to the king. But when his anger subsided the relative would want to hang himself for
what he had caused his kinsman.
SEFER HAHINUKH, reprinted in NEHAMA LEIBOWITZ, STUDIES IN DEVARIM (DEUTERONOMY) 239
(Aryeh Newman trans., 1980).

45. Halbertal, supra note 41, at 7.

46. AARON KIRSCHENBAUM, SELF-INCRIMINATION IN JEWISH LAW 72-73 (1970).

47. See Ezekiel 18:4 (describing all souls as belonging to G-d).

48. Supra note 19 and accompanying text.

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49. Hopt v. Utah, 110 U.S. 574, 587 (1884) (affirming the murder conviction of the defendant who appeared to confess
voluntarily, spontaneously, and in the absence of any threats or bribes from the police).

50. Id. at 584.

51. Id. at 585.

52. Id.

53. 297 U.S. 278 (1936).

54. Id. at 281 (quoting Brown v. State, 161 So. 465, 470 (Miss. 1935) (Griffith, J., dissenting)).

55. Id. at 281-82 (quoting Brown, 161 So. at 470-71).

56. Id. at 284 (quoting Brown, 161 So. at 465, 470-71).

57. Id. at 283 (quoting Brown, 161 So. at 470-71).

58. Id. at 284 (quoting Brown, 161 So. at 470-71).

59. Id. at 286.

60. “Whatever the social and political causes of the Supreme Court’s foray into state confessions cases, it has generally
been assumed that the due process voluntariness test was initially concerned only with reliability. On this view Brown
established, unremarkably, that physical torture impugns the trustworthiness of a resulting confession.” Steven Penney,
Theories of Confession Admissibility: A Historical View, 25 AM. J. CRIM. L. 309, 337 (1998) (footnotes omitted).

61. 346 U.S. 156 (1953).

62. Id. at 182.

63. Id. at 192.

64. Id. Similarly, the Court notes, “[a] forced confession is a false foundation for any conviction.” Id. But see Samuel v.
Frank, 525 F.3d 566, 571 (7th Cir. 2008) (citations omitted) (“Not all [coerced statements] are unreliable; their
reliability may be established by corroboration, as when a coerced statement reveals a fact, say the location of the
murder victim’s body, that only the murderer could have known. It is not a surprise when, forced to speak, a person
speaks the truth.”).

65. Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52, 55 (1964) (internal quotation marks and citations
omitted).

66. Id.

67. Id. (internal quotation marks and citations omitted).

68. Id. (internal quotation marks and citations omitted). For refutations of these policy arguments, see Henry J. Friendly,
The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. CIN. L. REV. 671 (1968).

69. See, e.g., Malloy v. Hogan, 378 U.S. 1, 8 (1964) (explaining that only those statements that a suspect makes “in the
unfettered exercise of his own will” may be used against him); Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (internal
quotation marks and citations omitted) (“We have said that the question in each case is whether the defendant’s will be
overborne at the time he confessed. If so, the confession cannot be deemed the product of a rational intellect and a free
will.”). See also Watts v. Indiana, 338 U.S. 49, 53 (1949) (“A confession by which life becomes forfeit must be the
expression of free choice.”); Bram v. United States, 168 U.S. 532, 549 (1897) (stating that for a statement to be

78
 voluntary, there must be proof that “the making of the statement was voluntary; that is to say… the accused was not
involuntarily impelled to make a statement, when but for the improper influences he would have remained silent”).
There are a number of difficulties with the “free will” test. For one, it requires courts to conduct “sweeping inquiries
into the state of mind of a criminal defendant who has confessed.” Colorado v. Connelly, 479 U.S. 157, 167 (1986).
Such inquiries are not only time-intensive and subjective, but also necessarily inconclusive, given the elusive concept
of free will. For this reason, in Connelly, the Court focused not on the defendant’s state of mind, but on the conduct of
the police. Because the defendant’s confession was not influenced by any police misconduct—even if it was the
product of unreliable hallucinations—the confession was admissible. Chief Justice Rehnquist noted that “[o]nly if we
were to establish a brand-new constitutional right—the right of a criminal defendant to confess to his crime only when
totally rational and properly motivated—could respondent’s present claim be sustained.” Id. at 166. Similarly, Judge
Posner of the Seventh Circuit has noted that if the “overbearing of free will” test was taken seriously, “it would require
the exclusion of virtually all fruits of custodial interrogation, since few choices to confess can be thought truly ‘free’
when made by a person who is incarcerated” and being interrogated. United States v. Rutledge, 900 F.2d 1127, 1129
(7th Cir. 1990). According to Judge Posner, the correct approach is to ask, “whether the government has made it
impossible for the defendant to make a rational choice as to whether to confess,” whether, in other words, the defendant
can “weigh the pros and cons of confessing and go with the balance as it appears at the time.” Id. According to Judge
Posner, “[t]her police are allowed to play on a suspect’s ignorance, his anxieties, his fears, and his uncertainties; they
just are not allowed to magnify those fears, uncertainties and so forth to the point where rational decision becomes
impossible.” Id. at 1130. While this test is clearer than the “overbearing of free will” test, the point of “rational
decision” seems highly subjective and elusive as well.

70. See Culombe v. Connecticut, 367 U.S. 568, 620 (1961) (illiterate mental deficiency); Blackburn v. Alabama, 361 U.S.
199, 207 (1960) (strong probability that the defendant was insane at the time he confessed); Payne v. Arkansas, 356
U.S. 560, 562, 567 (1958) (fifth grade education); Fikes v. Alabama, 352 U.S. 191, 196-97 (1957) (possibly mentally
ill).

71. See Payne, 356 U.S. at 560, (accused denied food); Watts v. Indiana, 338 U.S. 49, 53 (1949) (suspect repeatedly
interrogated by multiple officers throughout the night); Haley v. Ohio, 332 U.S. 596, 598 (1948) (fifteen-year-old
suspect questioned incommunicado throughout the night); Ashcraft v. Tennessee, 322 U.S. 143 (1944) (defendant
deprived of sleep for thirty-six hours).

72. Culombe, 367 U.S. at 581.

73. Id. at 582.

74. 384 U.S. 436 (1966).

75. STEPHEN A. SALTZBURG & DANIEL J. CAPRA, AMERICAN CRIMINAL PROCEDURE 671 (9th ed. 2010).

76. U.S. CONST. amend. V.

77. Miranda, 384 U.S. at 467.

78. Id. at 479.

79. Id. at 467 (“[W]ithout proper safeguards the process of in-custody interrogation… contains inherently compelling
pressures which… compel him to speak where he would not otherwise do so freely. In order to combat these pressures
and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and
effectively apprised of his rights….”).

80. Id. at 468.

81. Id. at 471.

82. Id. at 505 (Harlan, J., dissenting) (emphasis added).

83. Id. at 537-38 (White, J., dissenting) (emphasis added). See also Gerald M. Caplan, Questioning Miranda, 38 VAND. L.
REV. 1417, 1418, 1448 (1985) (arguing that “Miranda was intended to restrict, perhaps eliminate, virtually all police

79
 interrogation” because “[m]ost likely, as naive as it now appears, the Court expected the presence of counsel at the
station house to be routine and the waiver of rights extraordinary”); Malvina Halberstam, The Rationale for Excluding
Incriminating Statements: U.S. Law Compared to Ancient Jewish Law, in JEWISH LAW AND CURRENT LEGAL
PROBLEMS 177, 186 (Nahum Rakover ed., 1984) (noting that Miranda and its progeny “come very close to an
absolute bar on extra-judicial confessions”).

84. Miranda, 384 U.S. at 478. Some scholars have also argued that the interpretation of Miranda seeking to eliminate all
police interrogation is exaggerated. Stephen A. Saltzburg, Miranda v. Arizona Revisited: Constitutional Law or Judicial
Fiat, 26 WASHBURN L.J. 1, 22 n.124.

85. See Miranda, 384 U.S. at 460 (“Thus we may view the historical development of the privilege as one which groped for
the proper scope of governmental power over the citizen.”).

86. Id. (internal citation omitted).

87. Id.

88. Abe Fortas, The Fifth Amendment: Nemo Tenetur Prodere Seipsum, 25 CLEV. BAR ASSOC. 91, 96 (1954).

89. Id. at 98.

90. Id. at 100.

91. Id. This language has been cited with approval by circuit and district courts. See, e.g., United States v. Gecas, 120 F.3d
1419, 1459 (11th Cir. 1997) (Birch, J., dissenting); Moses v. Allard, 779 F. Supp. 857, 873 (E.D. Mich. 1991).

92. Robert S. Gerstein, Privacy and Self-Incrimination, 80 ETHICS 87, 90 (1970).

93. Id.

94. Id. at 92-93. See generally Lawrence Herman, The Unexplored Relationship Between the Privilege Against
Compulsory Self-Incrimination and the Involuntary Confession Rule (Part I), 53 OHIO ST. L.J. 101 (1992) (tracing the
history of the privilege against self-incrimination in English ecclesiastical courts).

95. Gerstein, Privacy and Self-Incrimination, supra note 92, at 94.

96. For example, some explain that the verse “a case can be valid only on the testimony of two witnesses or more,”
Deuteronomy 19:15, shows that a defendant must be convicted only on the testimony of two witnesses, and therefore
implies that the defendant’s own confession is not admissible. Rosenberg & Rosenberg, supra note 4, at 975-76.

97. According to the Bible, Saul was the first King of the Israelites, chosen by the prophet Samuel. Saul’s ascendance as
king transformed Israelite society from a loose tribal confederation to a monarchy. AARON M. SCHREIBER, JEWISH
LAW AND DECISION-MAKING: A STUDY THROUGH TIME 29-30 (1979). Biblical chronology places Saul’s
death in approximately 1000 BCE. Id. In spite of military and political power enjoyed by biblical kings,
contemporaneous prophets “emphasized that even the king had to submit to biblical law and morality.” Id. at 30. After
Saul’s death, David, a well-known warrior who had married Saul’s daughter, became King of the Israelites. Id.

98. 2 Samuel 1:6-10.

99. 2 Samuel 1:11-12.

100. 2 Samuel 1:16.

101. 1 Samuel 31:4-5.

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102. See KIRSCHENBAUM, supra note 46, at 67-68 (citing Maimonides for an interpretation that David was exercising his
“royal prerogative[ ],” a “system of secular law of the king, recognized by Jewish law”); see also SCHREIBER, supra
note 97, at 236-37 (“It was widely held that the king had the ultimate responsibility for maintaining public order….
Accordingly, the king was viewed as having a very active role in the sanctioning process and was expected to impose
whatever sanctions he felt necessary for public order, regardless of their illegality….”).

103. A word about the historical application of Jewish law after the destruction of the autonomous Jewish Commonwealth in
the Land of Israel is in order. During the Second Jewish Commonwealth (circa 500 BCE-70 CE), judicial power was
exercised by a supreme court known as the (Great) Sanhedrin. SCHREIBER, supra note 97, at 237. Information
regarding the Sanhedrin is obscure and contested. Id. at 238. What is known is that the Sanhedrin, located in Jerusalem,
consisted of seventy-one members who oversaw religious, legal, and municipal affairs. A HISTORY OF THE JEWISH
PEOPLE 250 (H. H. Ben-Sasson ed., 1976); Flatto, supra note 13, at 68. There were also “Small Sanhedrins,” which
were courts of twenty-three judges, and local courts consisting of three judges. SCHREIBER, supra note 97, at 238-39.
The smaller courts were abolished after the destruction of the Second Temple in 70 CE. Id. at 239. The Sanhedrin was
abolished not long afterwards. Id. According to the Talmud, Jewish penal law—in its “classical hermeneutical” sense—
was suspended when the Second Temple was destroyed in 70 CE. AARON KIRSCHENBAUM, JEWISH
PENOLOGY: THE THEORY AND DEVELOPMENT OF CRIMINAL PUNISHMENT AMONG THE JEWS
THROUGHOUT THE AGES at xviii (2013). However, according to Aaron Kirschenbaum, a “pragmatic, applied
system of Jewish Penal Law” continued to flourish. Id. at viii. This practical law was a fluid system in which
communal leaders and rabbinic courts meted out criminal sanctions that departed from those prescribed by the classical
system. While some might view aspects of the pragmatic non-classical penal system as lacking “the divine aura that
enhanced the classical hermeneutical punishments” or as merely “temporary palliatives,” the pragmatic system
functioned “for hundreds and hundreds of years—in conjunction with and subservient to the law of the non-Jewish
monarch who ruled over the areas in which Jews lived—as the penal law of the Jewish people, a kind of internal ‘law
of action.”’ Id. It is in the context of this pragmatic system that the laws of evidence were relaxed, including,
occasionally, the ban on self-incrimination.

104. See KIRSCHENBAUM, supra note 46, at 84-85 (describing the informer as “despised as a traitor and dreaded as an
enemy of society”).

105. Aaron M. Schreiber, The Jurisprudence of Dealing with Unsatisfactory Fundamental Law: A Comparative Glance at
the Different Approaches in Medieval Christian Law, Jewish Law and the United States Supreme Court, PACE L.
REV. 535, 547 (1991).

106. Shlomo ben Aderet, Vol. III, No. 393. For English translation, see KIRSCHENBAUM, supra note 46, at 67, and
SCHREIBER, supra note 97, at 382.

107. KIRSCHENBAUM, supra note 46, at 67.

108. SCHREIBER, supra note 97, at 382.

109. See KIRSCHENBAUM, supra note 46, at 67 (pointing out this possible explanation). Maimonides himself refers to
David and the Amalekite as a case of an emergency. See MAIMONIDES: JUDGES, supra note 19, ch. 18, para. 6, at
52 (“It is true that… David ordered the execution of the Amalekite stranger on the latter’s admission. But [that was an]
emergency case[ ]….”).

110. 1 TALMUD BAVLI, Sanhedrin 46a, supra note 21. See also 1 EMANUEL B. QUINT AND NEIL S. HECHT,
JEWISH JURISPRUDENCE: ITS SOURCES AND MODERN APPLICATIONS 179 (1980) (“There is substantial
precedent for permitting courts to exercise exigency jurisdiction even in the absence of traditional evidentiary rules and
safeguards.”).

111. KIRSCHENBAUM, supra note 46, at 87.

112. Id.

113. Id.

114. Id. at 91.

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115. See 2 Samuel 4:11 (“I will certainly avenge his blood on you, and I will rid the earth of you.”).

116. The Israeli legal system is a Western, secular, and liberal system and has traits of both common law and civil law
systems. Ruth Levush, How to Conduct Research in Israeli Law, 28 INT’L J. LEGAL INFO. 127, 127 (2000).
Religious law is a source of law “only by virtue of absorption by the secular state law.” Id. at 129. One exception to
that characterization is matters of marriage and divorce, which are under the jurisdiction of rabbinical courts. Id. at 132.
Despite the secular nature of Israeli law, certain Supreme Court justices, who are knowledgeable in Jewish law,
sometimes discuss a comparison with Jewish law or look to it as a historical source. 4 MENACHEM ELON, JEWISH
LAW: HISTORY, SOURCES, PRINCIPLES 1730 (Bernard Auerbach & Melvin J. Sykes trans., 1994).

117. Al Bahiri v. State of Israel 37(3) PD 169 [1983] (Isr.), as reprinted in ELON ET AL., supra note 10, at 206.

118. Id. at 208.

119. Id. at 208-09 (citation omitted).

120. It is interesting that American law also requires corroborating evidence in addition to a confession. Most American
jurisdictions adhere to a form of the corpus delicti rule, “which bars admission in evidence of a criminal defendant’s
extrajudicial confession unless the prosecution shows, by evidence independent of the confession, that the crime
charged was committed by someone.” Thomas A. Mullen, Rule Without Reason: Requiring Independent Proof of the
Corpus Delicti as a Condition of Admitting an Extrajudicial Confession, 27 U.S.F. L. REV. 385, 385 (1993). See also
Smith v. United States, 348 U.S. 147, 152 (1954) (“The general rule that an accused may not be convicted on his own
uncorroborated confession has previously been recognized by this Court….”). Just as Maimonides explained the Jewish
ban on confessions as protecting against confessions by suicidal individuals, the purpose of the corpus delicti rule was
to prevent disturbed people from confessing to crimes that had not taken place. Mullen, supra, at 385. Interestingly,
however, in keeping with the theme that runs through this Note, the rule has faced “dwindling vitality,” as exceptions
were created, and the quantum of evidence required diminished. Id. at 385-86.

121. ELON ET AL., supra note 10, at 209.

122. Kirschenbaum also notes other categories in which self-incriminating statements may be accepted. For example, self-
incriminating statements may be accepted when the confessant does not realize that he is making self-incriminating
statements (because he is uninformed of the law), and therefore he has no reason to lie. KIRSCHENBAUM, supra note
46, at 127. Similarly, self-incriminating statements may be accepted when the presumption of innocence of a particular
defendant has been shattered:
Thus a married woman who is pregnant is not believed at all when she declares that she has been unfaithful to her
husband. However, a declaration made by a betrothed or unmarried woman who is pregnant, that she had had sexual
relations with a man forbidden to her … is believed … her pregnancy has destroyed her presumption of innocence ….
The reasoning thus appears to be that once a person’s presumption of innocence has been broken; the strict rules of
evidence are relaxed; hence even self-incriminating statements are admitted as evidence.
Id.

123. See SCHREIBER, supra note 97, at 398-99 (“Although talmudic decision-makers cited… various principles and
rationales of law to justify the setting aside of biblical laws, it seems clear that their decisions were also based upon the
perspective that the Bible itself expected and authorized this, where departure from the law was necessary in order to
meet basic, overriding goals…. [I]t is clear in both theory and practice that traditional legal principles may be
overridden to attain basic goals.”).

124. See e.g., Charles J. Ogletree, Are Confessions Really Good for the Soul?: A Proposal to Mirandize Miranda, 100
HARV. L. REV. 1826, 1841 (1987) (“Although the Court as yet has given no indication that it is willing to take the
more controversial step of overruling Miranda, it has deeply eroded the foundation of the doctrine, leaving Miranda
almost useless in its present application.”); Barry Friedman, The Wages of Stealth Overruling (With Particular
Attention to Miranda v. Arizona), 99 GEO. L.J. 1, 16-25 (2010) (explaining how Miranda was effectively overruled
through a process of “stealth overruling”).

125. See Welsh S. White, Defending Miranda: A Reply to Professor Caplan, 39 VAND. L. REV. 1, 19 n.99 (1986) (“The
great weight of empirical evidence supports the conclusion that Miranda’s impact on the police’s ability to obtain
confessions has not been significant.”).

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126. It should also be noted that since Miranda only governs custodial interrogation, it does not apply to interrogations of
suspects not in police custody, or to statements made by defendants who are in custody in the absence of police
interrogation. Rhode Island v. Innis, 446 U.S. 291, 297-98 (1980). For example, in Innis, the Court held that the
respondent was not subjected to interrogation when police officers took him in a police vehicle without his attorney and
stated, “there’s a lot of handicapped children running around in this area, and G-d forbid one of them might find a
weapon with shells and they might hurt themselves.” Id. at 294-95, 302. The statement moved Innis to tell the officers
that he would show them where the gun was hidden because he “wanted to get the gun out of the way because of the
kids in the area in the school.” Id. at 295 (internal quotation marks omitted). Nonetheless, because the officers’
comments were not “reasonably likely to elicit an incriminating response from the suspect,” the suspect’s self-
incriminating statements were not made in response to interrogation, and therefore were admissible. Id. at 301, 303.

127. 401 U.S. 222, 224 (1971); see also Oregon v. Hass, 420 U.S. 714, 723 (1975) (holding that a defendant could be
impeached with incriminating statements made after police denied defendant’s request to contact a lawyer). The Harris
court may have initially allowed impeachment use of inculpatory statements made after Miranda-defective warnings
based on the understanding that the Miranda exclusionary rule was not required by the Constitution. See id. In
Dickerson v. United States, the Court clarified that Miranda warnings are constitutionally required, but upheld the
exceptions to Miranda that had developed in the case law as valid exceptions to a constitutional rule. See 530 U.S. 428,
432, 441 (2000).

128. Harris, 401 U.S. at 224.

129. Id. at 225-26.

130. Id. at 226.

131. See James L. Kainen, The Impeachment Exception to the Exclusionary Rules: Policies, Principles, and Politics, 44
STAN. L. REV. 1301, 1333 (1992) (noting “the futility of distinguishing between impeachment and substantive uses of
incriminating statements or otherwise limiting the inferential use of defendants’ statements” at criminal jury trials).

132. SALTZBURG & CAPRA, supra note 75, at 701 (citing HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN
JURY 160 (1966)). It should be noted, though, that defendants may often decide, and may be advised by counsel, not to
testify for a variety of reasons, not only because of the potential use of a confession as impeachment evidence.

133. 467 U.S. 649, 651-52 (1984).

134. Id. at 652.

135. Id.

136. Id. at 652.

137. Id. at 651.

138. Id. at 657. Not every conversation between police and suspects about a gun will fall under the public safety exception.
See United States v. Jackson, 544 F.3d 351, 360 n.9 (1st Cir. 2008) (finding that the public safety exception did not
apply when officers asked the defendant about a gun in his home, when the defendant was outside of his home,
surrounded by police officers); United States v. Mobley, 40 F.3d 688, 693 (4th Cir. 1994) (finding that the public safety
exception did not apply when officers asked the defendant about the location of a gun when the defendant was naked
and alone in his house).

139. Miranda v. Arizona, 384 U.S. 436, 444 (1966) (“The defendant may waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly and intelligently.”).

140. Colorado v. Spring, 479 U.S. 564, 573-74 (1987).

141. Moran v. Burbine, 475 U.S. 412, 421 (1986).

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142. See Davis v. United States, 512 U.S. 452, 460 (1994) (“Nothing in Edwards requires the provision of counsel to a
suspect who consents to answer questions without the assistance of a lawyer.”).

143. Id. 512 U.S. at 462, 455. The Court found there was no invocation of the right to counsel when the defendant said,
“Maybe I should talk to a lawyer.” Id. at 455. See also Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010) (finding
no invocation of right to silence after defendant was uncommunicative for almost three hours of police interrogation).

144. Berghuis, 130 S. Ct. at 2266 (Sotomayor, J., dissenting). In Berghuis, the suspect was interrogated for two hours and
forty-five minutes during which time he responded with limited responses, such as “yeah,” “no,” or “I don’t know,” but
did not affirmatively state that he wanted to remain silent or wanted an attorney. Id. at 2267 (internal quotation marks
omitted). As the interrogation was reaching three hours, the officer asked Thompkins, “Do you believe in G-d?”
Thompkins said, “Yes.” He was then asked, “Do you pray to G-d?” Thompkins said, “Yes.” The officer asked, “Do
you pray to G-d to forgive you for shooting that boy down?” Thompkins answered, “Yes,” and looked away. Id. at
2257 (majority opinion).

145. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966) (holding that “[i]f the individual indicates in any manner, at any time
prior to or during questioning, that he wishes to remain silent, the interrogation must cease,” because he has exercised
his Fifth Amendment privilege and further questioning would inherently constitute compulsion).

146. Michigan v. Mosley, 423 U.S. 96, 102, 104 (1975) (holding that while a defendant’s invocation of the right to silence
must be “scrupulously honored,” it does not give rise to “permanent immunity from further interrogation” (quoting
Miranda, 384 U.S. at 479)).

147. See supra note 4 and accompanying text (describing scholarship focused on the differences between American and
Jewish approaches to self-incrimination); see also Cheryl G. Bader, “Forgive Me Victim for I Have Sinned”: Why
Repentance and the Criminal Justice System Do Not Mix—A Lesson from Jewish Law, 31 FORDHAM URB. L.J. 69,
70 (2003) (“This essay will critique the GJP’s [Georgia Justice Project, a criminal defense organization whose mission
is to redirect the lives of its clients to achieve moral religious redemption] encouragement of confessions in the context
of the secular American justice system via comparison with the treatment of confessions under ancient Jewish law.”);
Samuel J. Levine, An Introduction to Self-Incrimination in Jewish Law, With Application to the American Legal
System: A Psychological and Philosophical Analysis, 28 LOY. L.A. INT’L & COMP. L. REV. 257, 272 (2006) ( “[A]
conceptual approach to the application of Jewish law might motivate the rethinking and possible modification of the
American law of confessions based on insights and lessons that arise out of an analysis of the Jewish law regarding
self-incrimination.”).

148. See supra notes 79-83 and accompanying text.

149. As Professors Rosenberg and Rosenberg point out, attempting to equate Jewish and American law would be like
“trying to stuff a whale into a molted snakeskin.” Rosenberg & Rosenberg, supra note 4, at 1041.

150. See supra notes 104-05 and 109-11 and accompanying text.

151. PETER BROOKS, TROUBLING CONFESSIONS: SPEAKING GUILT IN LAW AND LITERATURE 30 (2000).

152. See, e.g., Stephanos Bibas, Harmonizing Substantive-Criminal-Law Values and Criminal Procedure: The Case of
Alford and Nolo Contendere Pleas, 88 CORNELL L. REV. 1361, 1390-91 (2003) (“Punishment seeks to teach by
triggering and developing the offender’s sense of guilt. It tries to induce contrition and repentance so that the offender
will repudiate his past wrongful act and avoid committing it again.”); Robert F. Cochran, Jr., Crime, Confession, and
the Counselor-at-Law: Lessons from Dostoyevsky, 35 HOUS. L. REV. 327, 333 (1998) (exploring the ways in which
confession can bring “peace, joy, forgiveness, reconciliation, and a renewed sense of one’s identity” to a defendant but
can also bring criminal conviction and punishment).

153. See United States v. Nobles, 422 U.S. 225, 233 (1975) (“The Fifth Amendment privilege… protects ‘a private inner
sanctum of individual feeling and thought and proscribes state intrusion to extract self-condemnation.”’ (quoting Couch
v. United States, 409 U.S. 322, 327 (1973))); Gerstein, supra note 92, at 91 (analyzing the argument that the privilege is
needed to protect privacy and noting that “it is not the disclosure of the facts of the crime, but the mea culpa, the public
admission of the private judgment of self-condemnations, that seems to be the real concern”).

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154. See generally Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational
Action, 74 DENV. U. L. REV. 979 (1997) (discussing the problem of police-induced false confessions).

155. 498 U.S. 146 (1990).

156. Id. at 166.

157. Id. at 167.

158. Id.

159. Id.

160. U.S. SENTENCING GUIDELINES MANUAL § 3E1.1 (2013).

161. As Judge Friendly writes of the privilege against self-incrimination, “[n]o parent would teach such a doctrine to his
children; the lesson parents preach is that while a misdeed, even a serious one, will generally be forgiven, a failure to
make a clean breast of it will not be.” The privilege runs counter to our sense of social morality and reality in which
“[e]very hour of the day people is being asked to explain their conduct to parents, employers and teachers. Those who
are questioned consider themselves to be morally bound to respond, and the questioners believe it proper to take action
if they do not.” Friendly, supra note 68, at 680.

162. BROOKS, supra note 151, at 45.

163. Professor Amy Adler, for example, has written about the cultural fascination with the show, To Catch a Predator. In a
typical episode, she writes, a man caught engaging in an online sexual chat with a minor is made to grovel and confess
before the cameras. Amy Adler, To Catch a Predator, 21.2 COLUM. J. GENDER & L. 130, 148-49 (2012). He is
berated and reminded of the details of his unlawful conversation until he finally says: “Please stop… I confess, I’m
guilty, there’s nothing to dispute.” Id. at 149 (internal quotation marks omitted). And, Adler adds, “It’s the best part of
the show.” Id.

164. Genesis 2:16-17 (“And the L-rd G-d commanded the man, saying ‘Of every tree of the garden you are free to eat; but
as for the tree of knowledge of good and bad, you must not eat of it….”’).

165. Genesis 4:8.

166. Genesis 3:12 (internal quotation marks omitted).

167. See, e.g., RAMBAN (NACHMANIDES), COMMENTARY ON THE TORAH 91 (Charles B. Chavel trans., Shilo
Publishing House 1976) (“The correct plain interpretation is that it is a confession. Cain said, ‘It is true that my sin is
too great to be forgiven….”’).

168. MIDRASH RABBAH, Genesis 22:13, at 191-92 (H. Freedman & Maurice Simon trans., Soncino Press 3d ed., 1983).

169. Id.

170. Though this Note is focused on the Jewish tradition, other faiths have a similar tradition. See, e.g., 1 John 1:9-10 (NIV)
(“If we confess our sins, he is faithful and just and will forgive us our sins and purify us from all unrighteousness. If we
claim we have not sinned, we make him out to be a liar and his word is not in us.”).

171. See supra–Part I (discussing rationales for the privilege against self-incrimination in Jewish and American law).

172. 378 U.S. 478 (1964).

173. Id. at 488-89.

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174. Id. at 489; see also Haynes v. Washington, 373 U.S. 503, 519 (1963) (“[H]istory amply shows that confessions have
often been extorted to save law enforcement officials the trouble and effort of obtaining valid and independent
evidence….”).

175. Escobedo, 378 U.S. at 489 (citing 8 JOHN H. WIGMORE, EVIDENCE 309 (3d ed. 1940)).

176. Escobedo, 378 U.S. at 489.

177. Id. (quoting 8 WIGMORE, supra note 175, at 309).

178. Know the Cases: DNA Exoneree Case Profiles, THE INNOCENCE PROJECT,
http://www.innocenceproject.org/know/ (last visited October 10, 2014).

179. Understanding the Causes: False Confessions, THE INNOCENCE PROJECT,

http://www.innocenceproject.org/understand/False-Confessions.php (last visited October 10, 2014).

180. See Lamm, supra note 25, at 56 (expounding on Maimonides’ suicide by confession theory).

181. See Ofshe & Leo, supra note 154, at 985 (“The techniques interrogators use has been selected to limit a person’s
attention to certain issues, to manipulate his perceptions of his present situation, and to bias his evaluation of the
choices before him…. [I]f misused they can result in decisions to confess from the guilty and innocent alike.”).

182. Id. Ofshe and Leo write that investigators can elicit confessions from innocent suspects “either by leading them to
believe that their situation, though unjust, is hopeless and will only be improved by confessing; or by persuading them
that they probably committed a crime about which they have no memory, and that confessing is the proper and optimal
course of action.” Id. at 986.

183. See Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. REV.
891, 1004 (2004). For example, the authors quote one learning-disabled sixteen-year-old who falsely confessed to a
murder because, “They kept telling me I know you did it so why are you lying to me. They had me so upset I wasn’t
thinking right… [I]f I said, yeah, I did it, I could go home…. [S]o I said I did it….” Id. at 190.

184. BROOKS, supra note 151, at 87.

185. See supra note 41 (describing Halbertal’s “crook paradox”).

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