The Trial of Jesus. Walter M. Chandler
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 constituted 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 circumstances and corroborative facts surrounding the case. The following seven questions, constituting 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 illustrate: 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 entitled 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 entitled 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:
We have it as a fundamental principle of our jurisprudence that no one can bring an accusation against himself. Should a man make a confession of guilt before a legally constituted tribunal, such confession is not to be used against him, unless properly attested by two other witnesses. It is, however, well to remark that the death sentence issued against Achan was an exceptional case, brought about by the nature of the circumstances attending it, for our law never condemns on the single confession of an accused party.[148]
It is needless to suggest that the accused was never put under oath. His position in this regard was exactly the same as that of any other Hebrew witness. A special reason assigned for not swearing the accused is that offered in the celebrated maxim: "In most men religion is silent when interest speaks." Again, the inducement to perjury was so great that it was thought imprudent to allow the accused to confess under the solemnity of an oath.
The principle of law which rejects a bare confession of guilt as a basis of criminal conviction is one of the most merciful and benign known to jurisprudence. It is intended to protect the commonwealth against perjury and deception on the part of the accused. It is also intended to protect the prisoner against ignorance and rashness. It is a well-known fact that the masses of mankind are ignorant of law, both civil and criminal. Not one in a thousand in the most enlightened commonwealths can define successfully the elements of the crimes of the state of which he is a citizen. By refusing to allow an uncorroborated confession to be made the basis of a conviction, the State simply throws the mantle of charity and protection around the ignorance of the prisoner who confesses. It is also well known that men will frequently confess guilt when they are not guilty; sometimes, when they are even ignorant of the facts constituting the offense. This is one of the strangest things known to psychology and mental philosophy.[149] It is derived from the well-known and universally recognized weakness of the human will when confronted with a charge that threatens to blight and destroy life and character at a single blow. A celebrated modern writer, while discussing this rule of Hebrew law, wrote the following observations upon the origin and motive of confession of guilt under criminal charges:
The confession of the accused made no exception to the rule, showing how a confession could be made the result of weakness, or folly, or of interest—yes, even of interest. Some homicide on one occasion confessed himself to be guilty of robbery or arson in order to obtain proof of his innocence of some greater crime which he had committed at the same time; a husband persisted in declaring himself guilty of outrage upon a woman, really committed by some unknown person, in order that, by being sentenced on this account, he might prove his marital efficiency, which had been disputed by his wife, who was contemplating steps to annul her marriage. Some weak-minded people, unable to support the torture of a harassing examination, and eager to regain their liberty, make a full confession, accusing themselves in order not to be indicted, like those persons who, crossing a river on a plank bridge, throw themselves, through nervousness, into the rushing water, in order not to fall in. Fools, from want of responsibility, or through a boastful nature, accept, affirm, or confess everything of which they know nothing.[150]
The reasons above stated lie at the foundation of all modern provisions framed for the protection of the accused against precipitate self-condemnation. But, strange to say, these reasons were not urged by the framers or interpreters of Hebrew law. The explanation offered by the Talmud was simply this: "He is his own kin"; and, as we have seen, relatives