Silence: when stillness is the most important right

Source: The right to silence in law: from the U.S. Constitution to Israeli law

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

47. (a) A person is not obligated to provide evidence if it contains an admission of a fact that is an element of an offense with which he is charged or may be charged.

(b) If a person requested to refrain from providing evidence on the grounds that it might incriminate him as stated in subsection (a), and the court denied the request and the evidence was provided, the evidence shall not be presented against that person in a trial in which he is charged with the offense for which the fact revealed by the evidence is an element, unless he consented to it.

(The Fifth Amendment to the US Constitution; Evidence Law in the State of Israel (Incriminating Evidence))

Explanation: Why silence is a right: protection against self-incrimination

Only the legal system can determine the fate of a person who has committed a crime, except in cases of immediate danger during an emergency. The court may punish or acquit only when the legal process is fair and compelling, and one of the prerequisites for this is the right to silence. A person is not obligated to testify against himself, and retains the right to refuse to answer the questions of investigators or judges if the answer might incriminate him, without fearing punishment for the refusal itself. Israeli law adds that not only does a person have the right to remain silent and not incriminate himself, but he is also not obligated to provide evidence of his guilt, and evidence obtained without his consent or without a court order cannot be used against him.

Perspective: Four foundations of the right to silence: between human nature and legal justice

The right to silence is a fundamental right throughout the Western world, rooted in the requirement of due process. The accepted justifications are:

To prevent torture and coerced confession, the law determined that a confession must not be extracted from a defendant against their will. Furthermore, in many cases, a coerced confession is simply unreliable.

A defendant's confession is deeply compelling, and it tempts investigators and judges to stop examining evidence and circumstances that might otherwise alter the verdict.

It is human nature to seek one's own well-being and believe in the righteousness of one's path, and every person is entitled to the presumption of innocence. It is unnatural to expect someone to convict themselves before a legal system, and we therefore cannot demand a confession from them.

In both Hebrew and English, the word for a legal verdict (mishpat, "sentence") also denotes a linguistic utterance. Inside a courtroom, everyone speaks, testifies, interrogates, questions, and comments—yet only the defendant can exercise the right to be silent. Everyone speaks about him and to him, while he stands in silence. That silence serves both as a protective shield and as a posture of standing before judgment in humility, accepting the legal proceeding itself.

Going Deeper: The gap between principle and reality: plea bargains and coerced confessions

Although the right to silence belongs to everyone, in practice the vast majority of court cases conclude in a plea bargain—which essentially dispenses with the need for investigation and trial while reducing the sentence. This practice arose from the need to shorten lengthy proceedings and cut legal costs, yet the legal process clearly suffers as a result of false confessions, partial justice, and more. Jewish law went so far as to rule that not only does a person have the right to silence, but even if someone testified against themselves, their confession cannot serve as evidence and must be disregarded: ein adam mesim atzmo rasha—a person cannot incriminate himself. Nevertheless, in practice—much like in international law—halakhah often accepted confessions, even coerced ones, and at times treated anyone who invoked the right to silence as inherently suspicious precisely because of their silence.

In effect, the right to silence has often remained a noble legal principle rather than a practical reality. The only setting in which a person's confession is truly welcomed and trusted is before clergy or therapists, who are bound by confidentiality not to turn these confessions over to the legal system. In the Christian confessional booth, or during the Yom Kippur prayers in the synagogue, a person has an affirmative interest in testifying to their sins—to be unburdened of guilt and to seek forgiveness from God, who makes no mistakes and is already familiar with all the evidence.

Culture: Silence as prayer: when stillness stands before God and the congregation

With the Consent of the Omnipresent and the Consent of the Congregation | Rivka Miriam

With the consent of the Omnipresent and the consent of the congregation

With the consent of the firmament below, with the consent of the firmament above

Out of the memory of the creak of the gate being locked

Out of the memory of the child's parted lips as he asked—

We permit the keeping silent here of this prayer

To guard our mouth, holding back, not uttering another word

To be still in mercy and willingness, in awe and dread

To clothe our tongue in white dryness

Like a clean shroud

And like a bride's dress

So that our silence may be built, clenched and clear and stony

And fierce and standing, like a city built upon its mound

Until the hour of the locking of the gates.