Assisting the Guilty 35
real crises.’ Specifically, I will discuss problems involved in(a) defending one accused of a crime,(b) informing secular authorities of criminal behavior which is known to you, and(c) protecting confidential information which has come to you as a result of your professional clergy status.
A brief discussion of the resolution of the three cases will conclude the presentation.
Defending One Accused of a Crime
There is little question under Jewish law that a person is not required to plead guilty even if he actually is. This is because in so doing he would waive his right to a trial and such would essentially be the equivalent of requiring him to confess under any and all circumstances. Accordingly, a Jew may(or perhaps even must) plead“not guilty” in order to compel the civil authority(Jewish or secular) to prove its case according to the law.
The halakhic scope of a professional’s(particularly an attorney’s) role in aiding a criminal defendant is established by the Talmudic discussion at Niddah 61a which states:
Raba said: Regarding slander, even though one should not accept its truth, one should nevertheless take note of it. There was a rumor about certain Galileans that they had murdered a person. They came to Rabbi Tarfon and pleaded with him:“Will the Master hide us?” He said to them“But how should I act? If I do not hide you, you will be seen[and summarily executed by the blood avengers.] [On the other hand] if I do hide you the Sages[e.g., Raba, supra] have said‘Regarding slander, even though one should not accept its truth, one should nevertheless take note of it[and I would be acting contrary to that ruling].” Go and hide yourselves.”
The justification for Rabbi Tarfon’s refusal to aid the Galileans remains in dispute among Jewish authorities, which dispute is essential to our understanding of the limitations, if any, upon professional assistance to the guilty.
Rashi flatly states that the reason that Rabbi Tarfon would not help the Galileans was because if they were indeed guilty of murder, his assistance would be prohibited—implying that Jew ish law prohibits aiding defendants who might be guilty. But Tosafot and Rabbenu Asher(Rosh) both disagree, and insist to the