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The Jewish Ethicist: Pleading Innocent

The Jewish Ethicist: Pleading Innocent

Can I plead innocent if I did it?


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

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The Jewish Ethicist presents some general principles of Jewish law. For specific questions and direct application, please consult a qualified Rabbi.

The Jewish Ethicist is a joint project of and the Business Ethics Center of Jerusalem. To find out more about business ethics and Jewish values for the workplace, visit the JCT Center for Business Ethics website at

February 5, 2005

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Visitor Comments: 2

(2) Eliyahu Rooff, April 26, 2005 12:00 AM

Pleading not guilty

As a criminal defense paralegal, let me add to the Rabbi's comments a bit. Pleading "not guilty" isn't a claim of actual innocence but, rather, is a demand that the State prove the charges against you before imposing punishment. In many cases, it means that the accused may or may not have done the crime, but it allows him to introduce evidence to mitigate the punishment, to show that what he did was actually justified, or to show that, while he may have committed a crime, what he did was less serious than was actually charged. For example, a person who committed a second-degree theft would receive a substantially shorter sentence that one convicted of first-degree theft, and there's no obligation to accept a longer sentence simply because the State overcharged the defendant.

There are many contrasts between our civil courts and Jewish courts. The most significant here is that the halachic punishments are intended to provide eventual reconciliation between the offender and the victim, the offender and the community, and the offender and G-d. Civil courts, by contrast, rely heavily on creating a permanent record and history that will permanently separate the offender from the victim and the community as much as possible, and have no interest in the offender's spiritual life. Hence, I would argue that there's no reason for even a guilty person to willingly submit himself to a conviction which will have the opposite effect of a conviction under a Sanhedrin.

(1) Anonymous, February 6, 2005 12:00 AM

Pleading Guilty

This is a wonderful article that really enlightened me about our secular legal system! What about if you are innocent and you plead guilty to a crime that you didn't commit? I guess the same principles must apply. The way that our legal system is set up many people plead guilty to get out of jail sooner, even if they did not commit the crime they are accused of. Isn't that an unjust system? The people are usually intimidated by the system so that they plead guilty.

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