Confession and Capital Crime

29 Tevet 5776 Jerusalem Chanoch Ne’eman (c)

Last week, it was announced by the Police that they are going to indict a Jewish fellow for setting on fire an Arab home this summer, in which two parents and their child died.

The accused’s lawyers say that the confession on which the indictment is based was produced by the security forces beating the hell out of the suspect. The Minister of Defense himself was quoted some weeks before as saying, “We know who did it, but we do not have the evidence to prove it.”

That is a statement which you may find perplexing. I think preventing situations like that is why many countries have put due process clauses and the like into their law systems and constitutions. For example, you may have heard of the Fifth Amendment of the American Constitution, part of the first Ten Amendments adopted in 1791, and known as the Bill of Rights. The Fifth Amendment deals with the rights of the accused, and says, among other things, “No person shall be compelled, in any criminal case, to be a witness against himself.”

But lack of evidence is okay now, the Police say, because there is a “confession”.

And in fact, Halacha, already some almost two hands and two feet worth of centuries ago, said clearly that a confession can be determinative in monetary disputes, but not in capital crimes. If fact, the Rabbis said that a confession has no bearing whatsoever in capital crimes. Why? Because the Rabbis were familiar with the world and knew that there are various reasons why people might “confess” to crimes they did not commit. For example, threats to their families, torture, mental illness, collusion. Moreover, the Torah itself requires that capital crimes be decided only by the mouth of two witnesses. Confession is meaningless.

How sad that Israeli Jurisprudence is so far from Jewish Law in this matter.

I want the perpetrators of all acts of violence in Israel brought to justice. But I also want them brought there in a just way.



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