בבא מציא 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).
This is an incredible passage. When I first encountered it I wasn't certain I had understood it correctly. But there it was, in black and white. The Pious Mar Zutra had, in essence, tortured a confession out of a student.
The phrase that describes this 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 this passage 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 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.
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."
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.
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.
Back to Mar Zutra the Pious
We know little about Mar Zutra, but for those studying the one-page-a-day Daf Yomi cycle, the last place we learned his teachings was in Bava Kamma. On Shabbat, when using a stone from a wall to wipe himself after using the bathroom, Mar Zutra the Pious would then return the stone to its place in the wall. He would later instruct his servant to cement the stone back into place, so as not to damage the wall. He was, then, a man who acted to preserve the property rights of others, even in the most intimate of circumstances, when he knew no one would be watching. And there's another story about Mar Zutra's piety - this one with more bearing on today's teaching in the Talmud. In the tractate Nedarim, we are taught the following:
דמר זוטרא חסידא כי מחייב בר בי רב שמתא משמית נפשיה ברישא והדר משמת בר בי רב וכי עייל לביתיה שרי לנפשיה והדר שרי ליה ואמר רב גידל
When Mar Zutra the Pious placed excommunicated a student, Mar Zutra first excommunicated himself, and only then the student. On arriving home, he lifted the ban from himself and then from the disciple.
Tosafot offers two explanations for this rather unusual behavior. First, he excommunicated himself so as not to forget that he had done so to a student. This would force him to recall his student, and when the time came, he would lift the ban. The second proposal offered by Tosafot is that Mar Zutra acted in this way as a sort of penitence: excommunicating another person was an extreme measure, and Mar Zutra reminded himself of this by imposing the same punishment on himself.
תוספות נדרים דף ז, ב
פר"ת שזה היה עושה כדי שלא ישכח להתיר הנידוי של בר בי רב אבל עכשיו שמשמת נפשיה מתוך כך שהיה זכור להתיר שלו זכור יהיה נמי להתיר של בר בי רב ור"י פירש דלכפרה היה עושה כך שלא יענש במה שמנדה צורבא מדרבנן כי בקושי יש לנדותו
Do you recall the explanation of today's passage from Rabbi Betzalel ben Avraham Ashkenazi in his commentary called Shitah Mekubetzet with which we opened? He wrote that in order to coerce the student to confess, Mar Zutra threatened the suspect with...excommunication. And so perhaps we can now better understand the severity of this coercion, for Mar Zutra himself went to extraordinary lengths to avoid imposing it.
Mar Zutra was a complex man, who would use methods we call torture to extract a confession. The Talmud also points to his sensitivities. But do the latter ever forgive the former?