Evidently Not: Why Confessions Are Excluded in Jewish Criminal Jurisprudence

Of all the principles in classical Jewish law that stand out from a comparative legal perspective perhaps none is more notable than the ban on self-incrimination in criminal procedures. Contrary to the most basic evidentiary assumptions of other ancient legal systems, this principle differs fundamentally from the right to remain silent that is part of both early modern and modern legal systems. Only rabbinic jurisprudence incorporates an outright exclusion of criminal confessions. Despite receiving much scholarly attention over the centuries, this principle's fundamental justification relating to the rule of law and the public pursuit of justice has gone unnoticed. This article explores this salient jurisprudential perspective, and sheds new light on this principle by contrasting the Jewish legal approach with the primary modes of criminal adjudication that were adopted in the West. What emerges from this comparative analysis is that this seemingly anomalous principle actually reveals much about the core commitments and values of Jewish law. These, in turn, have substantial implications for certain contemporary legal practices and dilemmas.