Fact-Checking the Torah -- Investigations

OK if you think you missed the Hebrew lesson THIS week, look at yesterday's post. 

Anyway.

You had no assignment this week because the rules for investigation are not in Torah.  They developed out of the requirement for witnesses, and out of the requirement for investigation.

The rules are in Mishnah Damages Sanhedrin.  The judges examine the witnesses according to seven set questions about the time, place, and surroundings of the crime to which these men are witnessing. 

The judges also ask whether the witness actually saw the crime: “maybe you heard it from rumor.”  The witness has to give details of the surroundings to prove he was at the place he claims he was, at the time he claims he was.  Hearsay is not admissible in a Jewish court.

After the initial seven questions, the judges are responsible for going into the details.  One famous rabbi, Jochanan ben Zakkai, supposedly was not the son of a man named Zakkai, but was a shrewd criminal investigator.  Once he questioned a witness about the surroundings so carefully that it was proven the witness didn’t know what he was talking about, and the accused was acquitted.  The Hebrew for “acquitted” is zakai, hence the name.

Witnesses who turn out not to know what they are talking about are called "impeached" in Western law.  What kind of evidence impeaches a witness?  Actually, it takes both of them.  “If one witness says it was at 3 hours and the other says it was at 7 hours,” they are talking about times on opposite sides of noon, and their testimony is no good.  The point isn't that one witness is wrong or lying, it's that their testimony doesn't allow that they saw the same incident.  Both witnesses have to be able to testify to the SAME incident.

If they give dates only one day off, that’s all right, because they might not realize that the month was intercalated; some months on the Jewish calendar are 29 days and some 30, because a lunar month is not exactly 29 days long.  If they give different phases of the moon, however, like one says a half moon and the other says a ¾ moon, their testimony is no good because those phases occur a week apart.

A bystander can also impeach a witness.  The classic statement is that if a bystander at court can say to one of the witnesses “You couldn’t possibly have seen this happen because you were with me at X,” and X is not within sight of the place of the crime, then BOTH witnesses could not see the same incident.

But one thing Jewish law never does is impeach testimony of the accused.  Remember, Jewish law absolutely rejects confessions by the accused.  The second issue is that none of the witnesses can give the accused an alibi.  The trial is not about the accused.  The trial is about whether the witness testimony is accurate and shows that community policing procedures were followed.  Therefore no bystander has to get up in court and say that the accused could not have committed the crime because the accused was with the bystander in another place than the one where the crime was committed.

Now what do the witnesses have to say to show that a murder is not manslaughter?  We’ll go back to Torah for this because it’s all laid out clearly in Numbers and Deuteronomy:  read Numbers 35:16-19 and23; Numbers 35:19-22, Deuteronomy 4:42 and 19:4,5,11; Exodus 21:13-14 andExodus 22:1.

© Patricia Jo Heil, 2013-2018 All Rights Reserved