Lawyer's Brief: The right to remain silent


Last week a witness refused to answer any questions that I was asking by pleading the “Fifth Amendment.” Although the case was a civil matter, this witness was fully protected by the Bill of Rights, from responding for fear that his answers might later be used against him in a criminal case.
The theory of “pleading the Fifth” is simple. In the past, governments have abused their citizens by obtaining forced confessions, often with the use of physical or emotional force.
However, the United States Bill of Rights, prevents such abuse by guaranteeing that our government would not and could not force its citizens to testify.
According to Wikipedia, the common man’s encyclopedia, the “Fifth amendment”, right to remain silent traces back to due process found in old English Common Law, and ultimately the Magna Carta of 1215.
The truth is that Wikipedia is about 1000 years off. The Talmud, codified around the third century, specifically records that Jewish law forbids self incriminating testimony. However, unlike the Fifth Amendment where one may voluntarily testify against oneself, Jewish Law forbids a witness in or out of court from offering any testimony which is incriminating, even voluntarily.
There are two reasons for this. The first is to fully protect due process of law. All confessions have the “possibility” that they were obtained through force, and therefore do not contain the truth.
The only way to ensure that truth prevails is for the court to rely only and solely on non-party witnesses who have no interest in the outcome of the case.
There is a second and equally compelling reason why confessions against ones interest are never accepted, even purely voluntary. The Talmud states that “a human being cannot/should not testify that he is evil.”
Obviously this does not mean that we cannot physically testify against our interests, as we all know we can. It is done all the time. Just read the papers. What the Talmud means is that, in order to maintain our dignity as human beings, we can never let ourselves view ourselves as evil.

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