Pleading Innocent

Q. I'm guilty of a minor crime, but I'm pretty sure they won't be able to convict me. Can I plead innocent?

A. We should first clarify that there is a basic ethical responsibility to be law abiding. Especially in a democracy, almost all laws reflect a reasonable and legitimate public consensus for acceptable behavior. Let us hope that in the future you will succeed in avoiding even minor infractions.

That said, there is no law forbidding a person from pleading innocent. As we explained in a previous column, there is a big difference between a litigant and a witness. A witness is meant to serve the court and is expected to be impartial and to tell the whole truth. But a defendant has a known interest in the outcome and is permitted to exploit any advantages the legal system provides him, including making the most advantageous plea, seeking the most lenient venue, and so on. This assumption is the very basis of the adversary system customary today in the civil law.

It's certainly improper to use the mechanism of the legal system to evade any debts we owe, or to improperly obtain money from others. But someone guilty of a crime doesn't "owe" society a jail term or a fine. He does have the same responsibility as others to obey the law in the future and to respect the court system by not lying under oath and by not using it for unfair advantage. Punishments, however, are not a debt owed but rather one means among many that the legal system uses to discourage wrongdoing,

One way the secular law acknowledges that defendants need not proclaim their guilt is the protection found in most countries against self-incrimination. (In the United States this is the Fifth Amendment.) Even if you plead guilty, you can not be made to testify against yourself. "Plea bargains" also demonstrate that pleas are not meant to be a kind of testimony but rather are one element in the delicate negotiations between prosecution and defendant.

In Jewish law this principle is taken much further. A defendant in what we would call a criminal case is not asked to enter a plea at all, and is not asked to testify. No incentive whatsoever exists to encourage him to acknowledge wrongdoing. Maimonides writes: "It is the decree of Scripture that the court does not execute or lash anyone based on his own admission but only according to the testimony of witnesses". (1) He can be convicted only if independent witnesses provide convincing evidence of guilt. In effect every defendant automatically pleads innocent to every charge.

Jewish tradition does not deny that it is legitimate for the secular legal system to introduce a system of pleas, testimony, and the like in order to maintain public order in an equitable way. Indeed, Maimonides adds that Jewish communities also have mechanisms to introduce these elements according to need. (Today the Jewish religious communities lack effective authority to judge any kind of criminal cases.) We should participate in this system and enable it to function when we are called upon to do so. (2) However, the foundational level of Torah law does point to a certain ideal that a person shouldn't be compelled to admit wrongdoing in court, and since the secular court system also doesn't obligate this, there is nothing unethical about making the most advantageous plea.

If there is a high-profile case where a "not guilty" plea would create an impression of contempt for the law, then there would be special value in coming clean in court and accepting the prescribed punishment. Not long ago a prominent member of one North American Jewish community pleaded guilty to wrongdoing partly for this reason. And psychologically, the acknowledgment implicit in a guilty plea can sometimes be a helpful step in repentance and reconciliation with the community. But these considerations are hardly relevant for a relatively anonymous individual who has been charged with a minor crime.

All citizens should be law abiding, and certainly a witness or defendant should not lie under oath. But there is nothing illegal or unethical for a defendant to enter a plea which is most favorable to him, or to take advantage of the protection against self-incrimination. On the contrary, a legal system which obligates a defendant to plead or testify against himself risks cynical disregard for its dictates and values.

SOURCES: (1) Maimonides Laws of Sanhedrin 18:6. Compare Maharsha Makkot 6b. (2) See Shulchan Arukh Choshen Mishpat 28:3