CHAPTER IV

HEBREW CRIMINAL LAW--WITNESSES AND EVIDENCE

_Competency.--The qualifications of a competent witness, under Hebrew law, were almost identical with those of a qualified judge, mentioned in a previous chapter. Self-evidently, all persons who were not incompetent, were competent._

_Incompetency.--The following persons were incompetent to be witnesses: Gentiles, women,[123] minors, slaves,[124] idiots and lunatics, deaf mutes, blind men, gamblers, usurers, illiterate or immodest persons, persons who had been convicted of irreligion or immorality, relatives by affinity or consanguinity, and all persons directly interested in the case._

The witness must have been a Hebrew, though the Talmud mentions cases in which certain facts were allowed to stand proved upon statements "made innocently" by a Gentile; that is, not as a witness in court.

Women were not permitted to be witnesses ordinarily, because of the "levity and boldness of the s.e.x."[125] In capital cases, they were not allowed to testify against the accused, because the law required the witnesses to become the executioners of the condemned man, and it was not deemed proper to impose this solemn and awful duty upon the weaker s.e.x.

p.u.b.erty or adolescence marked the age which qualified a person to be a witness in criminal cases; that is, the thirteenth year must have been pa.s.sed.

Immoral and irreligious persons were incompetent to testify. Such men were termed "wicked" in reference to the law as laid down in Exodus xxiii. 1: "Thou shalt not raise a false report: put not thine hand with the wicked to be an unrighteous witness." Under the stigma of the immoral and irreligious came dicers, usurers, pigeon fliers, and those who traded in the fruits of the Sabbatical year. Maimonides also mentions as incompetent "men who showed lack of self-respect by eating on the street, walking about naked at their work, or living openly on the charity of Gentiles."[126] Publicans--tax-gatherers--were usually cla.s.sed with heathens and sinners as being among the immoral and irreligious. This cla.s.s of persons were suspected by the Jews, not only because they were regarded as the official representatives of the Roman oppressors of Judea, but also because extortion and cruelty were frequently practiced by them. Theocritus being asked which was the most cruel of all beasts, replied: "Among the beasts of the wilderness, the bear and the lion are the most cruel, but among the beasts of the city, the Publican and the Parasite."[127]

The doctrine of interest as a disqualification to testify was carried to the limit of declaring a person incompetent to be a witness when he was the citizen of a town where claim of t.i.tle to the public bath house or the square was made, until he had first divested himself of all share in the t.i.tle to the litigated property.[128]

_Number Required to Convict.--Under Hebrew law, both Mosaic and Talmudic, at least two witnesses were required to convict an accused person. The prosecuting witness being included, three were necessary._

Concerning capital punishment, the Mosaic ordinance, referring to this rule, runs thus:

At the mouth of _two_ witnesses, or _three_ witnesses, shall he that is worthy of death be put to death; but at the mouth of _one_ witness he shall not be put to death.[129]

Whoso killeth any person, the murderer shall be put to death by the mouth of witnesses; but _one_ witness shall not testify against any person to cause him to die.[130]

From the Talmud we learn that this Mosaic provision was maintained with scrupulous fidelity in the administration of justice throughout all the years of Jewish nationality. It was a requirement of prudence and safety which commends itself to every logician and legist. It is not necessary to be a criminal lawyer of large experience to know that the blackest falsehood can almost always secure at least one champion. Pliny, the historian, knew this when he wrote: "_Nullum tam impudens mendacium est quod teste careat._"[131]

The requirement of two witnesses was not, however, peculiar to the jurisprudence of the Hebrews. Nearly every ancient code contained a similar enactment. It was especially prominent in Roman law.[132] But it can scarcely be found to-day in any modern legislation. In prosecutions for the crimes of treason and perjury under the Common Law of England, two witnesses were required; in almost all other cases, one positive witness was sufficient.[133]

The American Const.i.tution requires two witnesses to the same overt act, to convict of treason.[134] And the penal laws of the majority of the American States have provisions requiring at least two witnesses, or one witness corroborated by circ.u.mstantial evidence, to establish guilt in the prosecution of certain crimes; notably, the s.e.xual crimes of rape and seduction, the crime of perjury, as well as all crimes where it is sought to convict upon the testimony of an accomplice.

More than one hundred years ago, Montesquieu boasted of such a requirement in French law and declared that those laws which condemn a man to death on the testimony of a single witness are fatal to liberty.[135] The reason of the rule proclaimed by the great French writer is the same as that put forth by the ancient Rabbins. It was a.s.sumed that the defendant in a criminal case would plead not guilty and deny the facts of the crime. His plea and denial would simply counterbalance and destroy the testimony of a single witness swearing for the commonwealth. The testimony of a third witness was, therefore, indispensable to a decision. It may be objected that this rule was absurd, since a conviction was impossible unless the State could produce more witnesses than the accused. But we shall learn later that the doctrine of sifting testimony and weighing the credibility of witnesses did not obtain so strictly among the ancient Hebrew judges as it does in cases of modern trial by jury under English and American law.

_Agreement of Witnesses.--The witnesses were required to agree in all essential details; else, their testimony was invalid and had to be rejected._

The Talmudic provision is: "If one witness contradicts another, the testimony is not accepted."[136]

The ill.u.s.tration of the rule given by Maimonides, in his commentary on this provision, is: "For instance, if one witness were to testify to having seen an Israelite in the act of worshiping the sun, and another to having seen the same man worshiping the moon, yet, although each of the two facts proves clearly that the man had committed the horrible crime of idolatry, the discrepancy in the statements of the witnesses invalidates their testimony and the accused is free."[137]

This rule of strict agreement, it is supposed, extended, at first, only to criminal cases, but it was undoubtedly afterwards applied to civil causes as well. An eminent contributor to the "Jewish Encyclopedia"

says:

In civil cases, however, it is not necessary that the two witnesses should agree very closely as to the time and place. Thus, if of two witnesses to a loan one should say, "A lent B a jar of oil," the other, "He lent him a jar of wine"; or, if one should say, "I was present when the money was paid at Jerusalem," the other, "I saw it paid at Hebron"; or, if one should say, "I saw it paid in the month of Nisan," the other, "I saw it paid in Iyyar," their testimony would be void. But if one says he saw it paid in the upper and the other in the lower story; or if he says on the first of the month and the other on the second of the month, such evidence is within the limit of fair mistake and the testimony stands. Even less does a disagreement as to circ.u.mstances other than time and place affect the testimony; for instance, if one say the money is black from usage, the other that it was new, this would be regarded as an immaterial circ.u.mstance, and the testimony would stand. Where the two witnesses vary only in the matter of quant.i.ty, the lesser quant.i.ty is sufficiently proved.[138]

One of the strangest provisions of Hebrew law was the requirement that the testimony of each witness to the transaction should cover the entire case. This was a Talmudic rule resulting from Rabbinic construction of the Mosaic ordinance, requiring at least two witnesses to establish a crime. The doctors of the law construed the rule to mean that the testimony of each witness was to be complete within itself and to extend to the whole case. Hebrew law did not permit the use of circ.u.mstantial evidence in criminal prosecutions. Only eyewitnesses of the crime were competent. Under English and American law a crime may be proven by any number of witnesses, each of whom testifies to a separate fact which const.i.tutes a link in the chain of circ.u.mstantial evidence. But this method of proof was forbidden by both the Pentateuch and the Talmud.

Under Hebrew law the capital crime of kidnaping was made up of the two elements of Abduction and Selling. The testimony of two witnesses--one to the fact of Abduction, the other to the fact of Selling--was insufficient to convict. Each had to testify to the facts of both Abduction and Selling. This Talmudic rule of criminal procedure was undoubtedly based upon a supreme regard for the sanct.i.ty of human life and upon the fact that the Hebrews rejected circ.u.mstantial evidence altogether in proving crime. The extreme of the rule is declared by Mendelsohn when he says: "And even where there appeared a legal number of duly qualified witnesses, the testimony was insufficient to convict, unless they agreed not only with regard to the prisoner's offense, but also with regard to the mode of committing it. Rabbinic law does not subject a person to capital, nor even to corporal punishment, unless all witnesses charge him with one and the same criminal act, their statements fully agreeing in the main circ.u.mstances, and declaring that they saw one another, while seeing him engaged in the crime."[139]

_No Oath Required.--An oath, in the modern sense, was never administered to a Hebrew witness._

Testimony was given under the sanction of the Ninth Commandment: "Thou shalt not bear false witness against thy neighbor." This solemn prohibition of bearing false witness was regarded by both Moses and the Talmudists as a sufficient safeguard against perjury. It was a settled maxim of Talmudic law that: "Whosoever will not tell the truth without an oath, would not scruple to a.s.sert falsehood with an oath." The doctrine was carried still further by some of the Jewish philosophers who declared that swearing was injurious in itself; and that he who consents to swear should _ipso facto_ be suspected of lacking credibility.[140]

In the place of an oath, the following solemn warning or adjuration was administered to each witness in the presence of the entire court:

Forget not, O witness, that it is one thing to give evidence in a trial as to money and another in a trial for life. In a money suit, if thy witness-bearing shall do wrong, money may repair that wrong.

But in this trial for life, if thou sinnest, the blood of the accused and the blood of his seed to the end of time shall be imputed unto thee.... Therefore was Adam created one man and alone, to teach thee that if any witness shall destroy one soul out of Israel, he is held by the Scripture to be as if he had destroyed the world; and he who saves one such soul to be as if he had saved the world.... For a man from one signet ring may strike off many impressions, and all of them shall be exactly alike. But He, the King of the kings of kings, He the Holy and the Blessed, has struck off from His type of the first man the forms of all men that shall live, yet so that no one human being is wholly alike to any other.

Wherefore let us think and believe that the whole world is created for a man such as he whose life hangs on thy words. But these ideas must not deter thee from testifying to what thou actually knowest.

Scripture declares: "The witness who hath seen or known, and doth not tell, shall bear his iniquity." Nor must ye scruple about becoming the instrument of the alleged criminal's death. Remember the Scriptural maxim: "In the destruction of the wicked, there is joy."[141]

It will be observed that the two elements of this preliminary caution were, first, a solemn warning against injustice to the accused through false swearing and a reminder of the inevitable retribution of Heaven upon the perjured swearer and his remote descendants; second, a pointed admonition against timidity or fear in testifying.

Bound by this tremendous sanction, the Hebrew witness was prepared to testify. The method was unique, but seems to have been thoroughly effective. Students of law will not be struck by its peculiarity. They are well aware that any plan or mode is legal and effective that binds the conscience of the witness. Even under modern codes that impose an oath, no fixed form is imperatively demanded. In King _v._ Morgan, I Leach C. L. 54, a Mahometan was sworn upon the Koran; in Omychund _v._ Baker, I Atk. 21, a Gentoo was sworn by touching the foot of a Brahmin; in Reg. _v._ Entrehman, I Car. & M. 248, a Chinese witness took an oath by kneeling down and breaking a saucer, the oath being administered through an interpreter in these words: "You shall tell the truth, the whole truth; the saucer is cracked, and if you do not tell the truth, your soul will be cracked like the saucer."

_Examination of Witnesses._--As an act of caution against the admission of irrelevant testimony, and as a means of placing before the entire court, in the first instance, only such evidence as was deemed strictly legal, a preliminary examination of witnesses was conducted in private by a special committee of the Sanhedrin appointed for that purpose. All irrelevant testimony developed at this private examination was immediately declared inadmissible and was cast aside. The necessary result of this most sensible proceeding was the discovery, in advance, of discrepancies in the statements of witnesses and the eradication of all illegal testimony. The full court sitting in regular session were not, therefore, exposed to the danger of being prejudiced by the recital of facts that had no legal connection with the case. Modern jurists might easily learn something from the ancient Hebrews in this regard.

Every sensible lawyer is perfectly well aware of the absurdity and injustice of the modern method of criminal procedure in allowing skilled and designing attorneys to propose certain kinds of irrelevant testimony in the presence of the jury, knowing very well that it will be overruled by the court. These attorneys frequently deliberately draw out such testimony from the witness with the expectation and understanding that it will be ordered stricken out. The rule of practice that allows incompetent testimony to be temporarily introduced upon a promise that a foundation will be laid or relevancy shown, is abortive instead of productive of justice. The mere clerical act of striking out incompetent testimony does not, as a matter of fact, remove the impression of prejudice from the brain of the judge or juror. The ancient Sanhedrists were men of brilliant education and superior natural endowments. They were trained in powers of logical a.n.a.lysis, and yet they were unwilling to trust themselves with the possession of prejudicial facts arising from incompetent testimony. It is respectfully submitted that the modern average juror, whose mind is usually undisciplined in logic and legal matters, is not able to sift and disentangle the relevant from the irrelevant in the record of a civil or criminal trial of two or more weeks' duration. Theoretically, he is; but practically, he is not. Every impression, good or bad, legal or illegal, received at the trial, affects his judgment and enters into the general summary of the case in reaching a verdict.

_Separation of Witnesses.--The witnesses were required to give their testimony separately and always in the presence of the accused._

Daniel said to the people concerning the two old men who testified against Susanna: "_Separate_ them, and I will examine them."[142]

By this was meant that witnesses could not be examined until they had been separated in conformity with law. Under modern practice in most jurisdictions, witnesses may be separated and examined one at a time out of the presence of each other. The rule of separation is, however, generally optional with the litigant and discretionary with the court; the ruling of the court being usually reversed only in case of abuse of discretion. But among the Hebrews the requirement was mandatory and imperative. It had to be observed in every case.

_Mode of Examination of Witnesses._--The mode employed by the Hebrew judges in examining witnesses is without a precedent or parallel in the jurisprudence of the world. Two distinct sets of questions const.i.tuted the examination. The first set consisted of a series of interrogations relating to the _time_ and _place_ of the alleged crime. These questions were prescribed by law and could not be varied in the slightest. The technical name applied to the first set of questions was Hakiroth. The second set was termed Bedikoth[143] and included all interrogations touching the investigation of relevant circ.u.mstances and corroborative facts surrounding the case. The following seven questions, const.i.tuting the Hakiroth, the first set of questions, were propounded to each witness: "Was it during a year of jubilee? Was it in an ordinary year?

In what month? On what day of the month? At what hour? In what place? Do you identify this person?"[144]

These seven questions were framed and applied in conformity with a fundamental principle of the Hebrew law of evidence that the testimony of any witness, if false, should admit of being impeached and overthrown by proof of an _alibi_ against the witness. It seems, indeed, that proof of an _alibi_ against the witness was the only method of impeachment known to Hebrew law. It may be readily seen that the only statements capable of being thus contradicted were confined to those relating to the details of _time_ and _place_. To ill.u.s.trate: Suppose that two witnesses had testified that the alleged crime was committed in a certain town at a certain hour; suppose that it subsequently appeared in evidence that, at the stated time, one or both these witnesses were in a neighboring town. In such a case, the witness or witnesses stood impeached, their testimony was overthrown and they, themselves, became subject to the pains and penalties of perjury.

The failure of any witness to answer satisfactorily any of the seven questions above mentioned ent.i.tled the accused to immediate acquittal.

Any material disagreement between two or more witnesses required by the law in answer to any one of these questions, likewise ent.i.tled the prisoner to immediate discharge. These seven questions seem to have been framed not so much to develop truthful testimony and to promote the ends of justice from the standpoint of the State as to enable the defendant to attack and destroy the testimony of hostile witnesses. The rule and the reason thereof are thus clearly and succinctly stated by Mendelsohn:

The several particulars referring to time and place must be furnished with the greatest possible precision and certainty, and that by the whole party of witnesses. The slightest disagreement on the part of the witnesses in regard to any one of these particulars invalidates the entire testimony. Even where a number of witnesses greater than that required by law, as three, appear, and two agree on every point, but the third differs from them as to more than one day, or more than one hour in the day, the whole testimony is invalidated. For time and place are the only points which affect the person of the witness himself; he not being able to be at more than one spot at any one time; time and place are, accordingly, the only grounds on which the witness may be confuted and duly punished.

The second set of questions, termed the Bedikoth, embraced all matters not brought out by the Hakiroth, such as would form the basis of legitimate modern direct or cross examination. The following kinds of evidence, however, were not admissible under either set of questions: Evidence of character, good or bad; previous convictions of the accused; and evidence as to the prisoner's antecedents. Such matters were not relevant, under Hebrew law, and could not be urged against the prisoner.[145]

_False Witnesses.--Hebrew law provided that false witnesses should suffer the penalty provided for the commission of the crime which they sought by their testimony to fix upon the accused._

The Scriptural authority for this rule is the following:

"And the judges shall make diligent inquisition; and, behold, if the witness be a false witness and hath testified falsely against his brother, then shall ye do unto him as he had thought to do unto his brother.

... And thine eye shall not pity, but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot."[146]

"And they arose against the two elders, for Daniel had convicted them of false witness, by their own mouth; and according to the law of Moses, they did unto them in such a sort as they maliciously intended to do their neighbor; and they put them to death."[147]

_The Accused as Witness.--The accused was never compelled, under Hebrew law, to testify against himself; but was permitted and encouraged to offer testimony in his own behalf. His confession of guilt was accepted in evidence and considered in connection with other facts of the case, but was never permitted, standing alone, to form the basis of a conviction._

The following is the commentary of Maimonides on this rule of law: