Using a State Witness in Cases of Corruption

Article Summary

Does halacha permit the use of a state witness despite the fact that the witness may at times be a criminal and benefits from his testimony? Regarding which crimes is it permissible to use a state witness? Does the fight against public corruption justify employing measures for extenuating circumstances?

Abstract

The Dilemma

A state witness is a person who was involved in the committing of a crime and testifies against his criminal partners in exchange for a variety of benefits such as immunity from prosecution or a more lenient sentence. In the past few years, there has been a rise in the use of state witnesses, and they have been utilized in many cases involving high-level political authorities. Is it proper to use state witnesses?

The central issue with utilizing state witnesses is the deterioration of the fundamental principle of a criminal being punished for their crimes. The question arises as to what value does a person’s testimony have, if at all, if they are aware that their fate is dependent on their testimony and if they understand that going back on their testimony will result in the prosecution revoking their agreement. On the other hand, at times the testimony of a state witness is the only way to ensure proper judgement against criminals who are more important than the state witness. Furthermore, there are fields of criminal law which are not able to be prosecuted unless one obtains the testimony of someone involved in the crime. Finally, state witness agreements can dissuade potential criminals who are worried about their crimes being exposed.

The Jewish Position

Halachic criminal law is comprised of two parts: first, what can be described as the ‘classical-halachic’ approach, including general principles that significantly limit the ability to punish a criminal, and secondly, the ‘extrajudicial punishment’ approach, which includes the authority to punish beyond the letter of the law in extraneous circumstances with the understanding that without this it would be impossible to ensure social order and dissuade criminals. According to the ‘classical-halachic’ approach, a state witness is disqualified from testifying because they have ulterior motives and because they receive benefit for testifying, as a witness’ obligation is to testify for free. Beyond this, there are additional reasons to disqualify him. However, the need to deal with crime, especially crimes of public corruption, which affect the foundations upon which society is built, can definitely be regarded as extenuating circumstances which justify employing the ‘extrajudicial punishment’ approach. However, there are possible claims against using a state witness even according to the extrajudicial punishment approach, including: the concern of the witness’ admissibility in court, the problematic justification of criminality, and the prevention of prosecution of criminals. However, one can demonstrate that the use of the extrajudicial approach by halachic authorities has included cases where similar concerns have arisen. Therefore, it seems that employing a state witness is justifiable. With that in mind, since we are dealing with testimony that involves complicated issues it is important to ensure that this does not become a routine practice, and the witness’ testimony should not be the determinant factor in conviction. Similarly, as clarified by Rabbi Avraham Isaac Kook, when employing the ‘extrajudicial punishment’ approach, there is an imperative demand to focus on maintaining proper intent, leshem shamayim.

Conclusions

The baseline is that using a state witness is very problematic, and one should make significant effort not to require one, due to the fact that they have ulterior motives. Despite this, one may utilize a state witness, however only for severe crimes or crimes involving public corruption. Even in these cases, one should not use a state witness unless there is no other choice. Since we are dealing with an extraneous case of using testimony with ulterior motives, it is especially important for the investigating and prosecuting authorities to ensure extensive verification of his testimony and be incredibly wary of perversion of the law.

1. Introduction

A state witness is a person who was involved in the committing of a crime and testifies against his criminal partners in exchange for a variety of benefits such as: immunity for prosecution or a more lenient sentence. In the past few years, there has been a rise in the use of state witnesses, and they have been utilized in many cases involving high-level political authorities. In this position paper we will deal with the ethical dilemma which encourages standardization of using state witnesses.

2. The Ethical Dilemma

The central issue with utilizing state witnesses is the deterioration of the fundamental principle of a criminal being punished for their crimes – whether the goal of the punishment is to dissuade criminals, to repay one’s debt to society, or the need to protect the public from the criminal – and this principle is relevant even when the criminal agrees to testify against his partners. Alongside this, using this agreement may cause the police to place less effort in investigating the case, because they can reach the desired information in a much easier fashion – through making an agreement with a partner of the crime. Additionally, this matter incentivizes criminals if they become aware that they can be excused of their crimes if they hand over their partners. Finally, the question arises as to what value does a person’s testimony have, if at all, if they are aware that their fate is dependent on their testimony and with the knowledge that if they renege on it the prosecution may revoke their agreement. 

On the other hand, at times the testimony of a state witness is the only way to ensure proper judgement against criminals who are more important than the state witness. Furthermore, there are criminal fields which are not able to be dealt with unless one obtains the testimony of someone involved in the crime. Finally, state witness agreements can dissuade potential criminals who are worried about their crimes being exposed.

The law addresses the unique status of a state witness and determines that their testimony requires support1however it does not determine the guidelines to the question of when it is proper to utilize this agreement. Aside from the letter of the law, the attorney general has issued guidelines in order to try and regulate this issue:2the core principles are that a criminal must be held accountable for their crimes and therefore one should only use a state witness in rare cases, and usually after the authorities have exhausted all avenues of normal investigative procedure. Additional factors that one should consider include: the centrality of the witness to the criminal act vs the benefit their testimony has to the public, the character of the witness, and their trustworthiness. However, even with these guidelines there is extensive room – regarding the issues of whether an agreement will be signed in this case and under what circumstances – for the prosecution to decide how to proceed.

3. The Jewish Position

3.1 Introduction: The Differentiation between the Classical-Halachic Approach and the Extrajudicial Approach

Halachic criminal law is comprised of two parts: first, what can be described as the ‘classical-halachic’ approach, including general principles that significantly limit the ability to punish a criminal, whether in regards to the reliability of the evidence and the testimonies or the possible sentences, and secondly, the ‘extrajudicial punishment’ approach, which includes the authority to punish beyond the letter of the law in extraneous circumstances, enabling one to accept evidence that would be disqualified according to conventional law and impose sentences that would not be permitted normally; all this with the understanding that barring this it would be impossible to ensure social order and dissuade criminals3.Extrajudicial punishment and use of temporary measures is found in many places in responsa literature4.According to the majority of opinions, this authority is granted to public figures and not just to the courts5. On the other hand, the poskim note that even this deviation from the norm has its limitations and one must exercise caution from significantly impairing the principles of the classical-halachic approach6

3.2 The Disqualification of a State Witness According to the Classical-Halachic Approach7

3.2.1 Disqualification due to Receiving Benefit from their Testimony: according to the classical-halachic approach, there are a number of reasons the testimony of a state witness would be disqualified. First, the witness benefits from the act of testifying, while according to halacha a witness must testify for free. According to many poskim, if one receives payment for this – their testimony is disqualified8.This issue also exists when the witness receives a reward from both parties, i.e. there is no reason to testify for one side specifically.  

3.2.2 Disqualification due to Ulterior Motives: a more severe issue exists when the witness receives benefit from one side in exchange for their testimony in a way that strongly encourages the witness to make sure the testimony is accepted. This disqualification is called ‘ulterior motives’ (נוגע בדבר)9, and according to most of the poskim, this compensation does not have to be monetary10.

3.2.3 Other Disqualifications: aside from this, the Torah employs very stringent requirements to determine a witness’ reliability: the witness must not be a criminal disqualified from testimony, there should be two witnesses, and for the required sentence in certain domains, the witness is required to warn the transgressor before the crime is perpetrated11.These requirements do not exist by a state witness.

3.3 Using a State Witness for Sentencing in Extenuating Circumstances

The need to use a state witness, at least in criminal domains where the police do not have the capability to deal with the crime without a state witness, has been explained well above. In addition, anything regarding bribery or public corruption of an official are foundations that society relies upon, as corrupt leadership damages the entire society and makes it incapable of thriving12.Due to this, our starting point is that state witnesses are for extenuating circumstances alone. 

3.4 Possible Oppositions

3.4.1 Introduction: there is a degree of separation between unique cases of judgement for legal procedure, which the Sages have followed throughout the generations and has included the acceptance of self-incrimination and relying on those who are disqualified from testifying, and between using a state witness. The difference is mainly in two domains; the credibility of the witness and the incentivization to commit crimes. Aside from this, we should mention the concern for pardoning crimes.

3.4.2 Credibility: There are halachic authorities of our generation who claim that unlike other disqualified witnesses, which are faced with an issue of admissibility of their testimony, the testimony of a state witness involves an issue of credibility as well and therefore one cannot accept their testimony even under extenuating circumstances13.On the other hand, some of the other disqualified witnesses can possibly involve this issue and we still accept their testimony. This is enough to reject the aforementioned differentiation14. Additionally, it is possible to solve this problem by being aware of it, so that the judge will consider this concern and accept the testimony only when he is convinced of its reliability (later on we will expand on how much support this testimony must have from circumstantial factors).

3.4.3 Incentivizing Criminal Activity: as noted above, according to the classical-halachic approach, testimony provided for payment is criminal and when a witness has ulterior motives – this is an extremely severe issue. In contrast, self-incrimination or testimony of disqualified witnesses is not criminal but unacceptable testimony and for this reason only is it prohibited to utilize it. Perhaps one should view the testimony of a state witness as a significant deviation from the principles of justice brought forth by the classical-halachic approach – which prohibits this implementation even in extenuating circumstances15. On the other hand, it seems that this concern itself is not a determinant factor, because ultimately there is no clear source determining what level of deviation is prohibited under extenuating circumstances, and when weighing this matter versus the essential need for a state witness agreement – in serious crimes and bribery cases which cannot be dealt with without this – the pros outweigh the cons; and thus, many poskim rule in this fashion16.

3.4.4 Pardoning Crimes: pardoning a witness’ past crimes can contradict the fundamental principle ‘and you shall exterminate the evil from amongst your midst’; however, many authorities mention that at the very least when prosecuting unique cases of criminal law, one may look the other way and pardon their crimes if the matter will bring society to a more elevated state17.

3.5 Restrictions

3.5.1 Habituality: there is disagreement regarding how much one may habitually utilize the principles of ‘extenuating circumstances’ and if the system should only implement them in highly unique cases18. Regarding a state witness, where there may be a deviation from the fundamental principles of Torah justice as explained earlier, the requirement that these agreements not serve as a consistent solution seems stronger.

3.5.2 The Level of Credibility of the Witness: earlier we saw that the law requires additional support for the testimony of a state witness, however in halacha we do not find a formal determination as to how much support is required, if any, to justify a testimony unacceptable under normal circumstances. From a number of sources, we see that the level of assistance is dependent on how convinced the judge is, and if the testimony is especially damning perhaps one would not require additional evidence19. In addition, with the knowledge that the witness has a motive to make the testimony acceptable, it is difficult to think of a case where the testimony would be especially damning.

3.5.3 The Requirement of Proper Intent: Rabbi Avraham Isaac Kook emphasized that when we deviate from the normal legal process and perform acts which are normally prohibited, we must ensure that the matter is performed with the proper intent and for the sake of heaven20. These matters are relevant even for state witnesses, and therefore the legal representatives are obligated to utilize a state witness through pure intentions.

4. Conclusions

4.1 The baseline is that using a state witness is very problematic, and one should make significant effort not to require one, due to the fact that they have ulterior motives.

4.2 Despite this, one may utilize a state witness, however only for severe crimes or crimes involving public corruption.

4.3 Even in these cases, one should not use a state witness unless there is no other choice.

4.4 Since we are dealing with an extraneous case of using testimony with ulterior motives, it is especially important for the investigating and prosecuting authorities to ensure extensive verification of his testimony and be incredibly wary of perversion of the law.

הערות שוליים

  1. Article 54a of the Evidence Ordinance (New Edition), 5731 – 1971.
  2. ‘State Witness’, Attorney General’s Guidelines, 4.2201 (30.8.2005).
  3. For the general basis of this authority see: Sanhedrin 46a; ibid., 83b; Mishneh Torah Hilchot Sanhedrin 24:4; ibid., Hilchot Melachim 3:10; Responsa of the Rashba, 3:393; ibid., 4:311; Drashot HaRan Darush 11. For expanded discourse see: Rabbi Ariel Bareli, ‘Criminal Law in Israel’, Tchumin 37 (5777), pages 373-380; Aharon Kirschenbaum, ‘Beit Din Mete Out Lashes and Punishment’: Criminal Law of the Nation of Israel – its Doctrine and its Consequences, Jerusalem 5773, pages 54-67.
  4. See for example: Ritva’s Responsa 131; Rivash’s Responsa 234; and Rashba’s Responsa (earlier previous endnote).
  5. See: Shulchan Aruch Choshen Mishpat 2; Hilchot Medina 1, Shaar 6; Rabbi Bareli (earlier endnote 3)
  6. Hilchot Medina, ibid, chapter 2; Rabbi Bareli (earlier endnote 3), pages 380-387. Aharon Kirschenbaum reaches a similar conclusion through analyzing the responsa of medieval poskim who rely on this authority. See Aharon Kirschenbaum, Self-Incrimination in Jewish Law, Jerusalem 5765, chapter 26. It is understood that it is difficult to define exactly what these restrictions are, see also article 3.4.3 later on.
  7. This article is based on the essay of Eliav Shuchtman, ‘Testimony of a “State Witness” in Light of Jewish Law’, Mishpatim 11(5741), pages 139-173.
  8. See the opinion of the Shulchan Aruch, Choshen Mishpat 34:18 and the commentators there. However, look in the Radbaz’s Responsa (3:507) where it is explained that according to the Rambam this testimony is not disqualified in a last resort case. Shuchtman (earlier previous endnote, page 146) notes that at its core there is no difference between monetary reward and receiving other benefit, for the obligation is to testify for free.
  9. Shulchan Aruch, Choshen Mishpat 37.
  10. Shach ibid, subarticle 10; Mahari Ben Lev Responsa, 3:121. See also the simple wording of the Rambam (Mishneh Torah, Hilchot Eidut, 16:4).
  11. Regarding the disqualification of criminals see Shulchan Aruch Choshen Mishpat 34. However, according to classical Jewish law there is no capability of self-incrimination (see ibid., article 25) and therefore a witness cannot be considered a criminal through his own testimony. However, if we are dealing with a known criminal (based on other sources), this disqualification is relevant here. Regarding the obligation for two witnesses see Devarim 17:6. Regarding the requirement to warn the transgressor see Mishneh Torah Hilchot Sanhedrin 12:1.
  12. See subarticles 2.2.3-3.3.3 in the position paper ‘Interrogation of a Governing Figure’.
  13. See for example Rabbi Avraham Elkanah Kahane-Shapira, ‘A Torah Perspective on the State’s Laws and Enacting Edicts Nowadays’, Tchumin 3 (5742), pages 238-239 (Rabbi Shapira is only willing to accept testimony in cases where there is concern for pikuach nefesh); see other rabbinical positions brought by Ariel Lavi, ‘ “Disqualified for Testimony, a Lying Witness”: What is Halacha’s Position on State Witnesses?’ Kikar HaShabbat (5.3.18).
  14. For example, this is the case of testifying relatives or testimony of one who abhors his fellow, which are both disqualified from sharing their opinions. See Nahum Rakover ‘State Witness’, Shilton HaChok BeYisrael, Jerusalem 5749, page 155.
  15. See Shuchtman (earlier endnote 7), pages 169-170, and page 173, endnote 117.
  16. Rabbi Dov Lior, ‘A Torah Perspective on State’s Laws and Enacting Edicts Nowadays’, Tchumin 3 (5742), pages 248-249; Rabbi Shlomo Aviner, ‘State Witness: is He a Kosher Witness?’ Srugim (22.2.18).
  17. See: Rashba’s Responsa, 5:238; Rabbi Uri Dessburg, ‘Pardon in Halacha’, Tchumin 7 (5746), page 422. We will note that perhaps even if a person is worthy of punishment according to the classical biblical approach one can – when absolutely necessary – abstain from prosecuting him, just like one may punish a person when they are not liable for the punishment. However, this is not the place for this discussion.
  18. The expression ‘extenuating circumstances’ (לצורך שעה) seemingly implies that we are dealing with a temporary measure (see as well the Chiddushei HaRan Sanhedrin 46:1). Practically, this has been a matter of disagreement between Rabbi Shlomo Goren (his opinion is brough in the sefer Legislation for Israel According to the Torah, Jerusalem 5749, pages 151-152) and Rabbi Yitzchak Isaac Halevi Herzog (his opinion is also brought there, pages 169-171), see more in Rav Bareli’s article (earlier endnote 3), pages 377-378.
  19. Rabbi Yosi Sharabi and Yuval Sinai, ‘Additional Evidence for State Witness Testimony in Jewish Law’ (Opinion Essay of the Center for Implementing Jewish Law, 12.7.07) and the proofs brought there.
  20. Be’er Eliyahu 2:6.

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