Abstracts

EVIDENCE

H.H. Cohn, "The Proof in Biblical and Talmudical Law", in La Preuve en Droit, ed. C. Perelman and P. Foriers (Bruxelles: E. Bruylant, 1981), 77-98. - This article surveys the biblical modes of proof, rabbinic rules of cross-examination and of the qualifications required of witnesses, and presumptions and other devices mitigating the heavy burden of proof (two eye-witnesses). (B.S.J.)

D. Daube, Witnesses in Bible and Talmud, Oxford: Oxford Centre for Postgraduate Hebrew Studies, 1986, Pp. 39 (Oxford Centre Papers). - This booklet also contains C. Carmichael, "Biblical Laws of Talion".

Eryl W. Davies, "The Meaning of pi senayim in Deuteronomy xxi 17", VT 36 (1986), 341-347; see OTA 10/1 (1987), no.196.

H. Hefetz, "The Status of Litigants in the Jewish Law of Evidence", (Heb.), Diné Israel 13-14 (1986-1988), 69-89. - The litigant plays an important part in the Jewish law of evidence, and in certain areas, the proceedings may be conducted solely on the basis of the litigant's arguments. The author illustrates this thesis with various examples from the Talmud and Codes, and deals at length with the two rules: "A litigant's confession is equivalent to one hundred witnesses", and "The burden of proof is upon the claimant." Other legal institutions dealt with are the rules for evaluating the evidentiary weight of confessions, the "miggo" presumption and the oath designed to instil the fear of God into the hearts of the litigants. According to the author, Jewish law is equipped with all the juridical tools necessary for ascertaining the truth in any legal proceeding. (D.B.S.)

H. Hefetz, "The Role of Evidence in the Halakhah" (Heb.), Diné Israel 9 (1978-1980), 51-85. - The article pinpoints the unique role played by the evidence of witnesses in Jewish law. According to Hefetz, the role of witnesses is purely evidentiary and entirely independent of the question of establishing the truth. The witness functions as an aid to the judge in arriving at his decision when the standard forms of proof are insufficient to tip the scale in favour of one or other of the litigants. In the same way that the judge must possess various qualifications in order to fulfill his role, the witness must answer to certain requirements before entering the special proof-category of testimony in Jewish law. (Y.S.K.)

Paul G. Mosca, "Once Again the Heavenly Witness of Psalm 89:38", JBL 105 (1986), 27-37; see OTA 9/3 (1986), no.820.

N. Rakover, Edut bishevu'ah, Jerusalem: Ministry of Justice, l980, Pp. 69 (Sidrat mehkarim usekirot bamishpat ha'ivri, 56); see KS 59/4 no. 6977.

Eliav Shochetman, "The Witness for the State in Jewish Law" (Heb), Mishpatim 11 (1981), 139-179. - Evidence proferred against accused by an accessory to crime in return for guaranteed immunity raises a problem of acceptability in substantive Jewish evidentiary Law for testimony proferred in return for immunity is potentially biased, thus invalid. S contends that since self incriminatory evidence is invalid insofar as it relates to the accused in Jewish Law, thus in cases where the accessory is only witness, the promise of immunity is unnecessary. It becomes necessary however either in cases where conviction of the witness is already secured by additional testimony and the witness refuses to supply the necessary testimony for conviction of the accused, or in cases where inherent judicial discretion allows self incrimination. The promise of immunity in these cases, though necessary as a means of procuring convicting evidence against the accused, also renders evidence invalid. S contends that in such cases, the Judge has inherent judicial discretion to relax formal evidential rules subject to basic considerations of reliability common to all systems. The preferred method however is that of an official ammendation (Takanah) validating evidence rendered by the State witness in return for immunity. (M.J.P.)

B. Susser, "Worthless Confessions: The Torah Approach", New Law Journal 130 (1980), 1056-57. - Under Jewish law, confessions are inadmissible as evidence of guilt. Susser prefers this to a system in which "voluntary" confessions are admissible. Where confessions may be used, he argues, police will try to obtain them - that is itself problematic. Where police have used or threatened harm, they may be able to persuade a jury otherwise. And even without such abuses, innocent people may incriminate themselves due to skilful interrogation, the intimidation inherent in the setting, or the power of suggestion. These dangers are even greater for those of lower intelligence. Susser indicates that "modern society" might profitably consider the Jewish approach. (D.H.P.)

H. van Vliet, Did Greek-Roman-Hellenistic law know the exclusion of the single witness?, Franeker: T. Wever, l980, Pp. 60; see KS 57/3-4 no. 3148.

 

 

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