Evidence:

By: Solomon Schechter , Lewis N. Dembitz

Whenever in proceedings at law an issue arises—that is, in civil cases when a fact is asserted on one side and denied on the other—the issue is generally determined by evidence, which the party having the burden of proof must proffer; and evidence to the contrary may be brought forward by the other party. The evidence may consist either of the testimony of witnesses or of documentary writings. What here follows applies in the main to civil cases.

I. Witnesses:

In order to prove a disputed fact, witnesses must fulfil the following requirements:

Number and Qualifications.

• 1. Two must testify to the same fact. This rule is laid down in Deut. xxv. 15 and in other passages apparently for criminal cases only, but it has been extended to civil cases as well. In civil cases, however, it is not necessary that the two witnesses should agree very closely as to 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 one says on the first of the month, and the other on the second of the month, such eviis within the limit of fair mistake, and the testimony stands. Even less does a disagreement as to circumstances other than time and place affect the testimony; for instance, if one says the money was black from usage, the other that it was new, this would be regarded as an immaterial circumstance, and the testimony would stand. Where the two witnesses vary only in the matter of quantity, the lesser quantity is sufficiently proved. In criminal cases, as has been shown under Acquittal in Talmudic Law, a much closer agreement is required.
• 2. The witness must be an Israelite. The Talmud seems to take this for granted; though it allows some facts to stand proved upon a statement "made innocently" by a Gentile; that is, not as a witness in court. In damage cases the Mishnah (B. Ḳ. i. 3) says expressly that the witnesses must be freemen and sons of the Covenant.
• 3. The witness must be a man, not a woman (R. H. i. 8); of full age, that is, more than thirteen years old; not a deaf-mute or a lunatic, and, according to the better opinion, not a blind man, and not either deaf or dumb. A boy not much over thirteen, and having no understanding of business, must not testify in a cause involving title to land (B. B. 155a). Nor should a person of full age testify as to what he said or heard as a minor, except in matters of frequent observation; e.g.: "This is myfather's," or "my teacher's," or "my brother's handwriting"; "This woman I used to see go out walking in maidenly hair and attire"; "Such a man used to go to the bath of evenings," indicating that he was a kohen (Ket. ii. 10).

Moral Qualifications.

• 4. He must not be a "wicked" man; for the Law says (Ex. xxiii. 1): "put not thy hand with the wicked, to be an unrighteous witness." The Mishnah (Sanh. iii. 3) names as those incompetent the vicious rather than the wicked; dicers ( ), usurers, pigeon-fliers, and those who trade in the fruits of the Sabbatical year. A baraita in the Gemara on this section (ib. 25a, b) disqualifies also tax-collectors and shepherds as presumably dishonest, unless their good character is proved, as well as butchers who sell "ṭerefah" meat for "kasher"; and it provides that they can reinstate themselves only by quitting their unlawful trade and by giving up for charitable purposes all the unlawful gains made therein. Maimonides ("Yad," 'Edut, x. 3) draws from the Talmudic passages Sanh. 25a, b and B. Ḳ. 72b the inference that one who purposely commits a sin to which the Law attaches the punishment of death or of forty stripes, or who robs or steals, although these latter offenses are not punishable by stripes or death, is "wicked" in the sense of being an incompetent witness. The same is true of one proved to be a "plotting witness" (Sanh. 27a). But the ground of incompetency must be proved by two other witnesses; the sinning witness can not become incompetent by his own confession.Informers, "Epicureans," and apostates are incompetent (Maimonides, l.c. x, end, followed by later codes). Also men who show lack of all self-respect—by eating on the street, walking about naked at their work, or living openly on the charity of Gentiles—are incompetent (Maimonides, l.c. xi. 6, based on Sanh. 26b). Where the incompetency arises under rabbinical provisions, the objectionable man must be publicly proclaimed incompetent ( ) before his testimony can be excluded (ib.).Where A and B are called as witnesses, and B knows that A is "wicked" (for instance, a robber), so as not to give force to the testimony of A, B should not testify (Shebu. 30b).
• 5. The witness must not have any interest in the litigation. The Talmud carries this doctrine so far as to state (B. B. 43a) that where some one raises a claim of title to the public bath-house or the square of the city, none of the citizens can testify or act as judge until he divests himself of all share in the title. Similarly, where the suit is on grounds common to two joint owners of land, one may not testify for his companion until he has sold his own share without warranty. In a suit for a field a tenant on shares may not testify for his landlord, for he is interested in the crop.
• 6. The witness must not be related to the party that calls him: in criminal cases the witnesses for either side must not be related to the accused. The degrees of consanguinity and affinity are the same as for judges, and are laid down under Agnates. The rule is derived from a rather bold interpretation of Deut. xxiv. 16, which is rendered, "Fathers shall not be put to death on [the testimony of] sons, nor sons on [the testimony of] fathers" (see Sanh. 27b); but the principle is extended from capital cases to civil suits, and far beyond the mere relationship between father and son. Relationship by marriage is at an end when the wife dies. The objection of friendship or hate that applies to judges does not hold as against witnesses.The Geonim disqualify a man who has publicly threatened a litigant that he will ruin him by a denunciation, from testifying against him (see Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 34, 20, and Be'er Golah thereon). The later codes follow the Palestinian Talmud on Sanh. iii. in holding that witnesses akin to each other or to the judges are incompetent (Ḥoshen Mishpaṭ, 33, 17).

II. Mode of Examination:

• 1. Witnesses do not testify under oath, but under the sanction of the ninth commandment. The presiding judge admonishes the witnesses before they testify. All persons other than the litigants and the witness to be examined are then dismissed from the room; the same procedure applies to all following witnesses.
• 2. He who knows testimony of benefit to his neighbor should, under the Mosaic law (Lev. v. 1), make it known to him; and an oath may be imposed on him to say whether he knows anything and what he knows. The Talmud (B. Ḳ. 56a) points to the words "he shall bear his iniquity"; hence, he is liable only to heavenly, not to earthly, punishment. With a view to the former, the litigant may ask that a ban (the "sound of the curse" of Lev. v. 1, Hebr.) be pronounced in the synagogue against all those who know aught in his favor and will not come forward to testify. Otherwise he has no remedy, no compulsory process against witnesses, and no means to force them to answer questions. But when the court finds that the witnesses for one party are intimidated by his opponent from appearing, it may compel the latter himself to bring those witnesses into court.
• 3. From "the mouth of witnesses," says the text, a man shall be condemned, not upon their written statement; hence, testimony should be given by word of mouth in open court, not by way of deposition. In all criminal cases, and in all suits for penalties or damages to the person, this rule is invariably followed; but in actions on contract, especially on behalf of the defendant, depositions are admitted for good reasons, such as that the witnesses are sick or absent from the place of trial, or that one of the parties is sick, so that the trial can not be had, while the witnesses are about to depart. In all such cases notice must be given to the opposite party, and the deposition, in the nature of minutes of judicial proceedings, must be taken before a court of three judges.

In Presence of the Litigant.

• 4. As a rule, witnesses may be heard only in the presence of the opposing litigant, so that he may suggest to the court points on which to cross-examine them. For this reason witnesses may not be received against a minor, because he would not know how to direct the cross-examination. Later authorities maintain that the rule, "No witness without the chance of cross-examination," appliesto the plaintiff's witnesses only; but the debtor may be the plaintiff, when he sues a minor heir of his creditor for the cancelation of his bond, by presenting his receipt attested by witnesses: it is held (Ḥoshen Mishpaṭ, 108, 17) that he must wait till the infant heir comes of age, as in the "parol demurrer" of the common law.
• 5. In civil cases, other than those for personal injury, the court is not bound to go, on its own motion, through the formal cross-questions as to time and place (see Acquittal), with a view of finding a contradiction between the two witnesses, for such a course would "close the door before borrowers"; but where the judges have reason to suspect that the claim or defense is fraudulent ( ; ib. 15) they should take all proper means to break down the testimony on that side.
• 6. Where the witnesses testify to an admission made by a litigant they should give, as far as they can, the very words, not their general import. Let the court decide whether the words amount to an admission, or whether they can be explained away as having been made in jest or for an ulterior purpose. The position is drawn from a section of the Mishnah and a baraita (Sanh. 29a).
• 7. Speaking generally, after a witness has been allowed to depart he may not retract his testimony by saying, "I was mistaken"; "I did not recollect"; etc. Even if he gives a plausible reason he is not listened to. But when other witnesses are called to attack the character of one who has testified, the latter may explain or retract (Sanh. 74b; Ket. 19b).

III. Documentary Proof:

This is often spoken of as , which is the general term for "evidence" or "proof."

• 1. It is in general either an instrument written by an adverse party, which has to be proved by witnesses acquainted with his handwriting, or the more formal instrument, known as a "sheṭar," or Deed, attested by two witnesses, but not necessarily signed by the grantor or obligor. When a deed (a conveyance of land, or a bond, or an acquittance) is the basis of an action or defense, it ought to be regularly proved by the testimony of the attesting witnesses; but if they are absent, or refuse to testify, other men may establish the deed by proving the handwriting of the attesting witnesses (there being, of course, two witnesses to the handwriting of each attester). When this is so proved, the attesting witnesses are not allowed to attack the validity of the deed. But if the party interested in the deed must rely on the word of the attesting witnesses, these may say: "True it is, we signed the deed, but we did so from fear for our lives"; or "The obligor delivered a protest to us, showing that he acted under duress"; or "We were under age, or incompetent on other grounds"; or "The deed had a condition attached which has not been fulfilled"; and they may thus defeat the testimony given by themselves in support of the deed. But if they say the sheṭar (say, a bond) was entrusted to the obligee without consideration, or that they acted under duress of pecuniary loss, or that they were incompetent by reason of sinfulness, or that the grantor was under age, their testimony in favor of the deed stands, and their attempt to defeat it is "not listened to" (Ket. ii. 3). But the attesting witnesses are always competent to state that the grantor or obligor made a protest to them by reason of duress; for this is not incompatible with the deed (Ḥoshen Mishpaṭ, 46, 37, 38).

Establishing a Deed.

• 2. A method to establish a deed, more especially a bond, at the instance of the holder, is given in the Talmud (B. Ḳ. 112a; see also B. B. 40a and Ket. 21a) and is recognized by the codes ("Yad," 'Edut, vi.; Ḥoshen Mishpaṭ, 46, 3-4). The two witnesses, at the instance of the holder, come before an improvised court, made up of any three respectable Israelites; and the latter write at the bottom of the deed "A B and C D appeared before us this day and testified to their own signatures, whereupon we have approved and established this deed"; and the three "judges" sign. Being in the nature of a judgment, this must be done in the daytime; but the proceeding is wholly ex parte. A deed thus established may, without further proof, be presented upon the trial of a case. The gloss of RaMA states that one expert is as good as three laymen, and that "in these countries" (meaning those of the German "minhag") it is customary for any rabbi at the head of a school ( ) to establish a deed.

IV. Effect of Evidence: Circumstantial Evidence.

• 1. 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 be taken out of a man's pocket on mere reasoning from the greater number of cases. In fact, circumstantial evidence was generally rejected.
• 2. 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 ("Yad," 'Edut, xvii. 1).
• 3. The length of time between the observation of the fact and the testimony is no reason for rejecting the latter, even though the witness has to refresh his memory by looking at a written memorandum (Ket. 20a).
• 4. It has been shown under Alibi how a "set" of witnesses may be convicted as "plotters" by another set or sets proving an alibi on them. But the opposite party may prove an alibi on the convicting set, or in some other way show that the facts testified to by the first set were impossible or untrue. Under such circumstances a modern judge or jury would weigh the credibility of the witnesses and the probability of their stories, and decide between them accordingly. The sages did not trust themselves or theirsuccessors with this discretion. If there were no indicia of fraud, they held that, as some one evidently was lying, they could not decide which of them it was; and that there was no evidence on the point. This would generally defeat the plaintiff's demand; for, as has been said under Burden of Proof, the burden lies on him who desires to get something from his neighbor. If there were any indicia of fraud, the judges would seek for some ground to disqualify as incompetent the witnesses who seemed at fault. Speaking broadly, the judges considered it their duty to decide the effect of the testimony as a question of law, not as one of the greatest probability; though in some matters the "lucky throw of the judge" ( ; i.e., his decision) was held indispensable.For the effect which the testimony of a single witness has in certain cases, short of proving the affirmation of the issue, see Procedure.

S. S. L. N. D.