44:18-20 בראשית
וַיִּגַּ֨שׁ אֵלָ֜יו יְהוּדָ֗ה וַיֹּ֘אמֶר֮ בִּ֣י אֲדֹנִי֒ יְדַבֶּר־נָ֨א עַבְדְּךָ֤ דָבָר֙ בְּאזְנֵ֣י אֲדֹנִ֔י וְאַל־יִ֥חַר אַפְּךָ֖ בְּעַבְדֶּ֑ךָ כִּ֥י כָמ֖וֹךָ כְּפַרְעֹֽה׃
אֲדֹנִ֣י שָׁאַ֔ל אֶת־עֲבָדָ֖יו לֵאמֹ֑ר הֲיֵשׁ־לָכֶ֥ם אָ֖ב אוֹ־אָֽח׃
וַנֹּ֙אמֶר֙ אֶל־אֲדֹנִ֔י יֶשׁ־לָ֙נוּ֙ אָ֣ב זָקֵ֔ן וְיֶ֥לֶד זְקֻנִ֖ים קָטָ֑ן וְאָחִ֣יו מֵ֔ת וַיִּוָּתֵ֨ר ה֧וּא לְבַדּ֛וֹ לְאִמּ֖וֹ וְאָבִ֥יו אֲהֵבֽוֹ׃
Then Yehuda came near to him, and said, Oh my lord, let thy servant, I pray thee, speak a word in my lord’s ears, and let not thy anger burn against thy servant: for thou art even as Pharoh. My lord asked his servants, saying, Have you a father, or a brother? And we said to my lord, We have a father, an old man, and a child of his old age, a little one; and his brother is dead, and he alone is left of his mother, and his father loves him.
As Yehudah pleads with Joseph (who still appears to be an Egyptian) to spare the life of Benjamin, he confesses that one of his brothers had died. This was not true. It was a false confession, as Rashi notes:
ואחיו מת. מִפְּנֵי הַיִּרְאָה הָיָה מוֹצִיא דְּבַר שֶׁקֶר מִפִּיו, אָמַר אִם אוֹמַר לוֹ שֶׁהוּא קַיָּם, יֹאמַר הֲבִיאוּהוּ אֶצְלִי
AND HIS BROTHER IS DEAD — He uttered this untruth out of fear. He thought: if I tell him that he is alive he may say “Bring him to me”.
When faced with alternatives that are not palatable, people will confess to things that are not true, and often, as Rashi notes, they do so “out of fear.”
Forced Confessions in the Talmud
Abaye and Rava
While Joseph did not physically coerce Yehuda’s false testimony, he certainly played a clever psychological trick on his older brother. In the Talmud, there are several incidents in which torture (or according to some, the threat of torture) was used to obtain a confession of a crime. In two (בבא בתרא קסז, א, Abaye suspected that bills of sale had been forged. "כפתיה ואודי" - Abaye bound the suspects to a post, and faced with the threat of physical torture, they confessed. In the third case it was Rava who suspected that his own signature and that of the elderly Rav Acha bar Adda had been forged. Rava too, bound the suspect to a post, after which not only did the suspect confess to forging both signatures, but he went on to explain how he had forged that of the elderly Rav Acha, whose hands had a tremor.
אנחי ידאי אמצרא ואמרי לה קם אזרנוקא וכתב
I placed my hands on the rope of a bridge while signing. Others say he stood on a skin bottle and signed.
Mar Zutra “The Pious”
In Bava Metzia Mar Zutra The Pious had coerced a student to confess to his crime.
בבא מציעא כד, א
מר זוטרא חסידא אגניב ליה כסא דכספא מאושפיזא חזיא לההוא בר בי רב דמשי ידיה ונגיב בגלימא דחבריה אמר היינו האי דלא איכפת ליה אממונא דחבריה כפתיה ואודי
Mar Zutra the Pious was involved in an incident in which a silver cup was stolen from his host. Later, Mar Zutra saw a certain student wash his hands and dry them on his friend's garment. Mar Zutra said: "this is the one who stole the cup, for he has no consideration for his friend's property. Mar Zutra bound the student to a post and coerced him, and he confessed to the crime (Bava Metzia 24a).
…And One More
For completeness, we should note that there is a fourth passage in the Talmud (Niddah 25b) that also uses the language of כפתיה ואודי. In that passage, a man was accused on having intercourse with his wife when she was ritually impure. He too was bound and confessed, though it is not clear who was ordering the binding.
He was bound and he confessed
Courtesy of Wikimedia.
The phrase that is used in all four cases is כפתיה ואודי "they bound him and he confessed." The root of the word to bind is כפת, which is used in rabbinic literature to mean to tie or to bind. Rabbi Asher ben Yechiel (Germany ~1250-1327), known as the Rosh, is certain that the suspect was tortured. In his commentary on the passage in Bava Metzia, he wrote וכפתיה בשוטי עד דאודי "he flogged him with rods until he confessed." (As in חושך שבטו שונא בנו ואהבו שחרו מוסר "spare the rod and spoil the child," from Proverbs 13:24.) Rabbi Betzalel ben Avraham Ashkenazi (Israel ~1520-1594) in his commentary to Bava Metzia called Shitah Mekubetzet agrees that coercion was used, although he is unsure if it was physical or psychological:
כפתוהו ואודי. יש מפרשים כפתוהו על העמוד והלקוהו בשוטים. ויש מפרשים כפתיה בדברים שנדוהו אם לא יודה האמת
Some explain that he was tied to post and flogged. Others explain that he was verbally coerced (and threatened with excommunication) until he confessed.
False Confessions
In a 2010 paper published in the Stanford Law Review, Brandon Garett notes that DNA testing has now exonerated over forty people who falsely confessed to rapes and murders. He wonders how an innocent person could convincingly confess to a crime he never committed. For example, in 1990 Jeffrey Deskovic a seventeen-year-old, was convicted of rape and murder. Deskovic was a classmate of the fifteen-year-old victim, had attended her wake, and was eager to help solve the crime. During one of several police interrogations he “supposedly drew an accurate diagram,” which depicted details concerning “three discrete crime scenes” which were not ever made public. "In his last statement, which ended with him in a fetal position and crying uncontrollably," wrote Garrett, "he reportedly told police that he had “hit her in the back of the head with a Gatoraid [sic] bottle that was lying on the path.” Police testified that, after hearing this, the next day they conducted a careful search and found a Gatorade bottle cap at the crime scene."
“Scholars increasingly study the psychological techniques that can cause people to falsely confess and have documented how such techniques were used in instances of known false confessions.”
Deskovic was convicted of rape and murder and served more than fifteen years of a sentence of fifteen years to life. Then in 2006, new DNA testing not only excluded him, but also matched the profile of a murder convict who subsequently confessed and pleaded guilty. So how did Deskovic know all the details of the crime to which he confessed? Here is what the District Attorney noted in the post-exoneration inquiry:
...Given Deskovic’s innocence, two scenarios are possible: either the police (deliberately or inadvertently) communicated this information directly to Deskovic or their questioning at the high school and elsewhere caused this supposedly secret information to be widely known throughout the community.
Another paper, this time in the North Carolina Law Review, analyzed 125 cases of "proved interrogation-induced false confessions, which, the authors note with some pride, is "the largest cohort of interrogation-induces false confession cases ever identified and studied in the literature." It makes terrifying reading.
It is of course really hard to study in the laboratory the psychological effects of torture and coercion and how they produce false confessions. But scientists try anyway. For example, a very recent paper from a team from the New School for Sociological Research in New York and the University of California studied the effect of sleep deprivation on false confessions. When compared to those who had rested, participants were over four times more likely to sign a false statement if they were deprived of one night's sleep. In another recent peer-reviewed paper, (Constructing Rich False Memories of Committing Crime) psychologists used suggestive retrieval techniques on some rather nice Canadian undergraduates. They found that up to 70% of those interviewed
were classified as having false memories of committing a crime (theft, assault, or assault with a weapon) that led to police contact in early adolescence and volunteered a detailed false account. These reported false memories of crime were similar to false memories of noncriminal events and to true memory accounts, having the same kinds of complex descriptive and multisensory components.
They continue:
Our finding that young adults generated rich false memories of committing criminal acts during adolescence supports the notion that false confessions and gross confabulations can take place within interview settings. The Innocence Project has shown that about 25% of false convictions are attributable to faulty confession evidence...The kind of research presented here is essential in the quest to help prevent memory-related miscarriages of justice.
False Memories Become Real
In a recent article in The New Yorker, Rachel Aviv reported on the remarkable story of how DNA evidence exonerated six convicted killers. Despite this, two of them had detailed memories of the killing that they didn't commit. One was a woman named Ada Taylor who confessed to a woman’s murder in 1989 and for two decades believed that she was guilty.
She served more than nineteen years for the crime before she was pardoned. She was one of six people accused of the murder, five of whom took pleas; two had internalized their guilt so deeply that, even after being freed, they still had vivid memories of committing the crime. In no other case in the United States have false memories of guilt endured so long. The situation is a study in the malleability of memory: an implausible notion, doubted at first, grows into a firmly held belief that reshapes one’s autobiography and sense of identity.
Of course murder is not the same as forging a document, but the lesson for those in criminal justice is the same. People confess to all sorts of things - especially when they are coerced or tortured- and can even forge false memories of the crimes of which they were accused.
Permitted Coercion in Jewish Law
In the Code of Jewish Law, the שולחן ערוך, the passage in Bava Basra is the basis for the legal right to extract a confession from a person suspected of forging business documents.
שולחן ערוך חושן משפט מב, ג
ואם צריך לכוף בעל השטר ולהכותו כדי שיודה יעשה כדי שיוציא הדין לאמיתו
If it is necessary, the owner of the document (who is suspected of forgery) may be beaten in order for him to confess and the truth to come out...
This certainly made me feel uncomfortable, but let's put this into some context. Torture has been a part of many judicial systems, and was a feature of Roman law. Perhaps most notoriously it was used by the Inquisition, after Pope Innocent IV issued a papal bill Ad extirpanda in 1252 which authorized its use by the Church. Closer to home, the US has recently grappled with, and condemned cases in which the Central Intelligence Agency tortured prisoners, as the Senate Select Committee on Intelligence (partially) revealed in 2014. But among the thousands of legal decisions in the Babylonian Talmud, there are only four rabbis who are named as having tortured or coerced a suspect to confess. And that low number, though it is not zero, should provide us with some solace.
As for Yehudah’s lie - well, it seems to have been a gamble that paid off. Joseph could not continue to hide his true identity, and he revealed himself to his brothers. There never had been a brother who had died. Just one who had been estranged for a very long time.
