Criminal Procedure

The method indicated by law for the apprehension, trial, and for fixing the punishment of those persons who have broken or violated the law. The prosecution and trial of criminals in Biblical times is enveloped in doubt. The only example of anything like a regular trial of a criminal case found in the canonical books is that of Naboth in I Kings xxi.; but the only thing clear from that scanty account is that Naboth was convicted on the testimony of witnesses, and not upon an extorted confession. The requirement of two witnesses is clearly stated in many passages of the Pentateuch. For everything else, for all matters of detail, we have to look to the Mishnah, slightly aided by quotations from the Baraitas.

In treating of the course of proceedings the Mishnah (Sanh. iv. 1) says: "In capital cases they [meaning the judges] "open with a view to justification and not to guilt"; but the real meaning of this passage had been lost even as early as the time of the Amoraim (Gemara, ib. 32b). According to the Mishnah, capital cases must not be tried on the day preceding a Sabbath or festival, for the court must adjourn to the next day, before it can convict, and courts may not sit on days of rest. While any of the "disciples" present may volunteer an argument for acquittal, they are not allowed to argue for conviction. In capital cases those sitting at the ends—that is, the youngest judges, not the judges of highest standing—gave their opinion first, in order to avoid any undue influence by the latter. None but "priests, Levites, and Israelites"—to the exclusion of converts, as well as of persons whose daughters are disqualified from marrying into the priesthood—are competent to judge capital cases (Mish. Sanh. iv. 2). The Sanhedrin (of 23 or 71) sat in a half-circle so that the members could see one another, and two court clerks stood before them, one to take down the words of the condemning, the other to take down those of the acquitting, judges (ib. 3). In capital cases the witnesses were cautioned, after being brought into the court-room, in these or similar terms:

(Prov. xi. 10, Hebr.)

"Perhaps you speak by way of guess or estimate, or from what you have heard, as a witness who heard from the mouth of another witness, or of some trustworthy man. Perhaps you do not know that we are going to test you by formal and by free cross-examination. You should know that cases of life and death are not like cases about money. In a case about money the false witness can repay the money lost and he is forgiven; in a capital case the blood of the accused and of all his posterity clings to him to the end of the world; for so we find it as to Cain, who killed his brother, of whom it is said: 'The bloods of thy brother are crying out against thee' [Gen. iv. 10, Hebr.]—his blood and that of all his posterity. Or perhaps you say: 'Why should we trouble ourselves about this man's guilt?' But it is written: 'When the wicked perish, there is gleeful song'".

"By way of guess or estimate" in this exhortation means "from circumstances"; and such evidence was deemed wholly insufficient for a regular conviction (see Crime).

In prosecutions for theft, embezzlement, and other crimes, which were only punished by fines, double compensation, etc., the procedure was the same as in cases for damage to property ("dine mamonot"), taking place before three ordained judges ("mumḥim"). Involuntary manslaughter, punishable by exile to the cities of refuge, was tried under the same forms as capital cases. The Mishnah leaves it to be inferred that these forms were also applied to prosecutions for misdemeanors punishable by stripes. Compare Accusatory and Inquisitorial Procedure; Acquittal in Talmudic Law; Crime; Sanhedrin.

L. G. L. N. D.