The Trial of Jesus. Walter M. Chandler
permitted to be witnesses. A modern Jewish writer has assigned the following reason for the rule forbidding a confession to form the basis of a conviction: that, if the prisoner were innocent, he should not be permitted to incriminate himself by a false confession; if he were guilty, he was a wicked person, and, therefore, incompetent to testify under Hebrew law.[151] This rule was not enforced, however, against the defendant when testifying in his own behalf; an additional proof of the merciful regard of Hebrew law for the unfortunate position of a human being charged with crime. His testimony, though self-serving, was given due weight when urged in his own defense. Little attention was paid to it when he testified against himself.
Relevancy of Hebrew Evidence.—Hearsay evidence was irrelevant under Hebrew law. "Hearsay evidence was barred equally in civil as in criminal cases, no matter how strongly the witness might believe in what he heard and however worthy and numerous were his informants."[152]
Circumstantial evidence was irrelevant under Hebrew law. "The sages had very little more confidence in circumstantial evidence given for the purpose of 'taking money out of' the defendant's pocket, than in that given for the purpose of inflicting the penalty of death or stripes. Ket. ii. 10 has been cited, according to which a witness may testify that, when a boy, he saw a woman walk about in maidenly attire; the object being to prove that she married as a maiden, not as a widow, and is therefore entitled to a greater sum for her jointure. In discussing this clause, the Talmud remarks that this is only arguing from the majority of cases; for though in most cases those wearing maidens' attire are not widows, occasionally they are; and money ought not to be taken out of a man's pocket on reasoning from the greater number of cases. In fact, circumstantial evidence was generally rejected."[153]
There were occasional exceptions to the rule in the administration of Hebrew civil law, but none in criminal law. In criminal cases no Hebrew prisoner could be convicted upon circumstantial evidence. Every link in the chain of testimony had to be forged by the direct evidence of at least two competent witnesses; else the accused was acquitted and discharged.
Written, or documentary evidence, was not relevant, under Hebrew law, in criminal prosecution. The reason of this rule was derived from a literal interpretation of the Mosaic ordinance: "Whoso killeth any person, the murderer shall be put to death by the mouth of witnesses."[154] The expression, "mouth of witnesses," was construed by the interpreters of the law to require oral testimony and to exclude writing in all criminal prosecutions.
Kinds of Oral Testimony.—Hebrew oral testimony is divided by the Mishna into three leading classes:[155]
(1) Vain testimony.
(2) Standing testimony.
(3) Adequate testimony.
"Vain testimony" seems to have been wholly immaterial and irrelevant. It was not even conditionally admitted, but was instantly and permanently rejected. The New Testament seems to indicate that such testimony was rendered against Jesus by the "many false witnesses" who first came, and that testimony was rejected.
"Standing testimony" seems to have been conditionally admitted and to have been allowed to remain in evidence until it was properly confirmed by and joined to other evidence which the law required. It was not valid, however, until so connected and confirmed. We must remember that at least two witnesses, agreeing in all essential details, were needed, under Hebrew law, to convict a prisoner. It is evident then that the testimony of the first witness against the accused was necessarily regarded as "standing testimony," until the second or confirming witness, which the law required, had testified. This testimony is also referred to in the New Testament when it is said that: "At the last, came two false witnesses, And said, This fellow said, I am able to destroy the temple of God and to build it in three days."[156] The testimony of the first of these witnesses was doubtless allowed to stand until it was shown that the second witness did not render testimony in agreement with it. Contradictory testimony was thrown out under Hebrew criminal procedure; and this was done regardless of the number of witnesses who testified against the accused. It seems that a rigid application of the principle of exclusion based upon contradictory statements would have shut out the testimony of any number of agreeing witnesses, if said testimony had been contradicted in a radical and material way by even a single witness. The sifting of evidence and the weighing of the credibility of witnesses, which is the peculiar prerogative of the modern jury, were no part of the duties of the ancient Sanhedrists. The testimony of all the witnesses against the accused had to agree in all material respects, else it was wholly rejected. Now it necessarily follows that all testimony against a prisoner was of the "standing" or provisional kind until the last witness had testified, and it was found that the evidence in its entirety was in legal agreement. Mark, using the almost exact technical expression of the law, tells us, concerning the false testimony against Jesus, that "their witness agreed not together."[157] This disagreement caused the "standing testimony" of the first witness to fall and the charge of threatening or attempting to destroy the Temple was abandoned, as we shall see in a later part of this work.
"Adequate testimony," under Hebrew criminal procedure, was evidence that was competent, material, and in legal agreement. When two or more witnesses, being the entire number, against the accused agreed in all essential details, their testimony was considered adequate, and if the judges believed it to be true they based a conviction upon it.
Antecedent Warning.—It is deemed appropriate in this chapter to call attention to and briefly discuss a very striking peculiarity of the law of evidence under Hebrew criminal procedure. In the chapter on Mosaic and Talmudic law, reference was made to the celebrated proviso, called "Antecedent Warning." This proviso was unknown to the Mosaic Code, being a creation of Talmudic law, and is without a parallel in the jurisprudence of the world. Briefly stated, Antecedent Warning, under Hebrew law, meant simply this: That no person charged with crime involving life and death, or even corporal punishment, could be convicted, unless it was shown by competent testimony that immediately before the commission of the crime the offender was warned that what he was about to do was a crime, and that a certain penalty was attached thereto. The warning was not effective if any time elapsed between the admonition and the commission of the offense. Furthermore, the warning was of no force unless it was shown that the alleged criminal had duly acknowledged it and had expressed a willingness to suffer corporal punishment or to die for the act. It must have been shown that, having received the warning, the would-be offender turned to his monitor and said, "I am very well aware of the nature of the act I am about to commit, of the rules of law applicable thereto, and of the inevitable consequences of my misdeed"—else the court could not consider the condition complied with.
This peculiar proviso seems to have been intended to serve three distinct purposes: (1) To protect the would-be offender against his own ignorance and rashness and to prevent the commission of crime by a timely warning; (2) to aid in establishing guilty intention, that is, criminal intent, at the trial of the prisoner, after the commission of the offense; (3) to enable the judges to determine the exact penalty to assess. The first two purposes are self-evident. The third merits a brief consideration. To complete the warning, it was essential that the offender be told the exact penalty attached to the crime which he was about to commit; whether the punishment was capital or corporal, and the exact kind, if capital; that is, whether beheading, burning, stoning, or strangling. Now, it often happened that two crimes were committed by the same person in one day; the penalty for one of which being flagellation and the other death. And it sometimes happened that two different crimes were the result of one criminal transaction. In such a case, the nature of the Antecedent Warning would guide the judges in decreeing punishment. To illustrate: The Mosaic Code forbids the killing of either a cow or a ewe "and her young both in one day";[158] and a violation of this prohibition, according to Rabbinic law, entails the punishment of flagellation. Another Mosaic ordinance imposes the penalty of death on the Jewish idolater.[159] Now, it might have happened that the last two offenses mentioned were committed by the same person at the same time, as when an Israelite