Monday, January 20, 2014

Achan's Confession and Criminal Conviction (Joshua 7:19-22)

Joshua 7

King James Version (KJV)

19 And Joshua said unto Achan, My son, give, I pray thee, glory to the Lord God of Israel, and make confession unto him; and tell me now what thou hast done; hide it not from me.
20 And Achan answered Joshua, and said, Indeed I have sinned against the Lord God of Israel, and thus and thus have I done:
21 When I saw among the spoils a goodly Babylonish garment, and two hundred shekels of silver, and a wedge of gold of fifty shekels weight, then I coveted them, and took them; and, behold, they are hid in the earth in the midst of my tent, and the silver under it.
22 So Joshua sent messengers, and they ran unto the tent; and, behold, it was hid in his tent, and the silver under it.

To be convicted of a crime, Scripture requires the testimony of two or three credible witnesses:
One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established. (Deuteronomy 19:15)
Some might also argue that material evidence can suffice, per 1 John 5:8-9 and Deuteronomy 22:13-17.

But what about confession? Can this suffice for conviction?[1] Some may say "yes" on the basis of Achan's confession; according to this view, since his confession preceded his execution, confession alone is sufficient for conviction even without two or three witnesses. Or, some may say the confession plus the corroborating evidence in his tent sufficed, together amounting to "two witnesses."

However, we don't think Achan's confession is a good example to warrant confession as normative for criminal conviction. The reason is that Achan was proven guilty by lot via God's intervention (v. 18); Joshua's request for confession seems to be a desire for Achan to repent before God. 

But can other passages of Scripture establish confession as sufficient for criminal conviction and punishment? 

One may point to Zacchaeus, who, with the Lord's approval, confessed his criminal behavior and was willing to make restitution to anyone he defrauded (Luke 19:8, 9). This was certainly right for Zacchaeus to do, but this can be done without involving the state. Man's natural freedom to give money to whomever he wishes easily allows for him, in crimes that require restitution, to voluntarily pay the penalty of his crime and bypass the state in the process. Indeed, settling out of court is often the prudent thing to do (Matthew 5:25; cf. 1 Corinthians 6:1-8).

However, our concern here is confession as it relates to the state declaring one guilty and inflicting punishment. The example of Zacchaeus doesn't indicate state involvement. However, there is an example in Scripture that may indicate that confession is normative for determining guilt and punishment. 2 Samuel 1 describes an Amalekite who told David that he killed Saul, per Saul's request, who was wounded and wanted to end his suffering. David reacts by having the Amalekite executed on the basis of his own testimony:
And David said unto him, How wast thou not afraid to stretch forth thine hand to destroy the Lord's anointed? And David called one of the young men, and said, Go near, and fall upon him. And he smote him that he died. And David said unto him, Thy blood be upon thy head; for thy mouth hath testified against thee, saying, I have slain the Lord's anointed. (2 Samuel 1:14-15)
Was the Amalekite's story true, or was he just telling David what he thought David wanted to hear? Matthew Henry writes, 
It is doubtful whether this story be true. If it be, the righteousness of God is to be observed, that Saul, who spared the Amalekites in contempt of the divine command, received his death’s wound from an Amalekite. But most interpreters think that it was false, and that, though he might happen to be present, yet he was not assisting in the death of Saul, but told David so in expectation that he would reward him for it, as having done him a piece of good service. Those who would rejoice at the fall of an enemy are apt to measure others by themselves, and to think that they will do so too. But a man after God’s own heart is not to be judged of by common men. I am not clear whether this young man’s story was true or no: it may consist with the narrative in the chapter before, and be an addition to it, as Peter’s account of the death of Judas (Acts. 1:18 ) is to the narrative, Mt. 27:5. What is there called a sword may here be called a spear, or when he fell upon his sword he leaned on his spear.  
However, according to Henry, whether the Amalekite made up the story or not, his punishment was just:
Now,1. David herein did not do unjustly. For, (1.) The man was an Amalekite. This, lest he should have mistaken it in his narrative, he made him own a second time, v. 13. That nation, and all that belonged to it, were doomed to destruction, so that, in slaying him, David did what his predecessor should have done and was rejected for not doing. (2.) He did himself confess the crime, so that the evidence was, by the consent of all laws, sufficient to convict him; for every man is presumed to make the best of himself. If he did as he said, he deserved to die for treason (v. 14), doing that which, it is probable, he heard Saul’s own armour-bearer refuse to do; if not, yet by boasting that he had done it he plainly showed that if there had been occasion he would have done it, and would have made nothing of it; and, by boasting of it to David, he showed what opinion he had of him, that he would rejoice in it, as one altogether like himself, which was an intolerable affront to him who had himself once and again refused to stretch forth his hand against the Lord’s anointed. And his lying to David, if indeed it was a lie, was highly criminal, and proved, as sooner or later that sin will prove, lying against his own head.
Whatever actually happened, and however David actually saw it, the Amalekite's testimony was the basis for his execution, for David said, "Thy blood be upon thy head; for thy mouth hath testified against thee, saying, I have slain the Lord's anointed." 

We're not sure why David's execution of the Amalekite based on his testimony would be a unique situation; as such, we find it likely that personal testimony should be a normative due process procedure. And while during that time the Amalekites were sentenced to destructionand thus it would have been lawful for David to execute him simply for being an AmalekiteDavid does not state this as the reason for executing him, but, again, his testimony about killing Saul.

Some, however, do not see personal testimony as normally sufficient for conviction, and so on this matter John Gill writes,
[A]s Abarbinel thinks, David might suppose that he killed Saul to take vengeance on him for what he had done to their nation; but, after all, both he and Maimonides allow the punishment of him was not strictly according to law, but was a temporary decree, an extraordinary case, and an act of royal authority; for in common cases a man was not to be condemned and put to death upon his own confession, since it is possible he may not be in his right mind; but David chose to exercise severity in this case, partly to show his respect to Saul, and to ingratiate himself into the favour of his friends, and partly to deter men from attempting to assassinate princes, who himself was now about to ascend the throne.
We do hold, however, that even if confession alone is acceptable evidence, it would be wise to at least try and corroborate it. It is always possible for one to have his confession extracted via torture or manipulation. Thus the confessor can help the court confirm his guilt by pointing to material evidence and/or one or more witnesses. 


[1] Henry Bullinger argues that confession alone suffices:   
But let not the magistrate execute any man until he know first perfectly, whether he that is to be punished hath deserved that punishment that the judges determine; and whether God hath commanded to punish that offence, that is, whether by God's law that is condemned, which is to be punished. The truth thereof shall be manifestly known, either by the proper and free confession of the man accused, or by the probable testimonies brought in and gathered against the defendant, or by conferring the laws with the offences of him that is to be punished. So then the magistrate may not punish virtue, true religion, nor good, honest, and godly men: for he is ordained of God to terrify, not the good, but offenders. (Bullinger, The Decades of Henry Bullinger: The Second Decade: The Eighth Sermon) 
Whereas R. J. Rushdoony argues that confession is not sufficient evidence, and leads to torture:
When scholars began to study Roman law, and, later, Aristotle, Greco-Roman norms began to replace Biblical ones. Whereas Biblical law required evidence, not confession, now, as Edward Peters noted in Torture (1985), “Confession ascended to the top of the hierarchy of proofs” and remained there (p. 44). The consequences were devastating. First, it simplified the work of law enforcement. The needed “evidence” was extracted by torture from the suspect. There was an analogy, Peters noted, to plea bargaining. Most suspects in plea bargaining cases are guilty; the work of the police and the court is simplified by having the suspect plead guilty to a lesser offense. Torture also simplified the legal process; a majority of the suspects may have been guilty, but , as for the rest, well, human justice could not be perfect. (R. J. Rushdoony, The Roots of Reconstruction, retrieved January 20, 2014 from