Admissibility of Confessions

In June of this year the Supreme Court threw out a confession given by a teenage accomplice accused of involvement in the deadly 2015 firebombing of a Palestinian home in the town of Duma; the reason behind the ruling was due to the fact that the confession had been determined to have been offered under duress.  In Israel – as in many jurisdictions around the world, and consistent with the Universal Declaration of Human Rights – forced confessions such as the one offered in this case are not admissible, unless perhaps the means are warranted due to a ‘ticking bomb’ situation.

              In reality, though, Israel’s opposition to a confession serving as the basis for a guilty verdict is far broader than concerns associated with forced confessions alone.  Indeed, thanks to the influence of Jewish law’s general opposition to the admissibility of confessions – based on the Talmudic dictum that “that no man may call himself a wrongdoer” (Sanhedrin 9B, Yevamot 25B)[1] – Israeli law has been hesitant to allow confessions serve as the sole source for a conviction.   In Al Bahiri v. State of Israel, Justice Menachem Elon reviewed Jewish law on this question and concluded that confessions of crime were absolutely inadmissible in Jewish law, even if there was corroboration.  He then noted, however, that as times and needs changed, Jewish law became more flexible in order to maintain order in society.   Quoting the Rashba, he highlighted a few of the changes that Jewish law undertook, including for example the permission to accept certain witnesses who were previously deemed disqualified and the assertion that circumstantial evidence was sufficient if it was strong and substantial.  Relevant to our discussion, the Rashba (Responsa 4:311) also permitted a court to convict a defendant on the basis of his confession.  However, Justice Elon emphasized, this ruling was limited in application in that there had to be some addition ‘measure of corroboration’ to support the veracity of the confession.  In a parallel case,[2] Justice Elon overturned a conviction based on his (above) position and the fact that the defendant in this case was convicted solely due to his confession – i.e., without any additional corroborating evidence.  

[1] A variety of reasons have been offered for this opposition, including the Biblical requirement that evidence requires at least two witnesses (and a confession by one person would thus be insufficient, not to mention inadmissible if for no other reason the witness – the alleged criminal – is also a relative to himself, and thus disqualified as a kosher witness to begin with), the Rambam’s concern that a depressed person might confess to a crime he didn’t commit specifically because he wants to be punished (Mishneh Torah, Sanhedrin 18:6), and Radbaz’s contention that since a person’s body belongs to God no person has the right to forfeit it unless the court actively uncovers evidence warranting it, and a voluntary confession is the person’s action not the courts.

[2] State  of Israel v. Suleiman El Abid.  Interestingly, at the Beersheva District Court level of this case, Judge – and now Supreme Court Justice – Neal Hendel offered an innovative insight in his minority opinion, suggesting that Jewish law’s attitude towards confessions could perhaps be linked to the US Constitution’s Fifth Amendment right against self-incriminating confessions, which the US Justice Douglas argued is “part of our respect for the dignity of man.”   Justice Hendel picked up on that language and connected that argument with Israel’s Basic Law: Human Dignity and Freedom.