THE JERUSALEM INSTITUTE OF JEWISH LAW Rabbi Emanuel Quint, Dean Interrogation of witnesses
In what seems like a former lifetime, Prof. Neil Hecht of Boston University School of Law and I wrote a two volume work entitled Quint and Hecht on Jewish Jurisprudence. These volumes received the approbation of the great Gaon Rav Yosef Dov Soloveichik zt"l. (I have been told by Rav Rakefet that the Rav gave only two approbations in his life.) The first chapter has 752 citations. We cite all relevant sources, from the Torah through the latest codes and responsa literature. It is with this in mind that I now refer to another source. I refer to Torah Tidbits #379, "R'ei contains 55 of the 613 mitvoth: 17 positive, 38 prohibitions". On page 7, Phil writes "This command is generalized to require thorough examination and questioning of witnesses in all types of cases."
This commandment is based on the Torah verse "You shall inquire, and make search, and ask diligently..." (Deuteronomy 13:15). Based on this verse, Rambam enumerates positive commandment 179 - "By this commandment we are instructed to inquire into the testimony of the witnesses and cross-examine them carefully before meting out punishment or rendering a decision. We must exercise the most scrupulous care so as not to give a poor and quick decision, and so harm the innocent."
According to this Torah verse, all witnesses must undergo cross-examination. The examination consists of three categories: drishah, hakirah and bedikah. There is a difference of opinion regarding the first two categories. Are they both the same, and the general category is drishah-and-hakirah, or are they two different types of examination. Most of the codes and commentaries treat drishah-and-hakirah as one category and bedikah as another category. We can call drishah-and-hakirah "inquiry" and bedikah can be called "interrogation".
Inquiry consists of pinpointing the time and place of the event. Inquiry comprises seven questions, six of which deal with time, and the seventh with place. The seven questions inquire as to (1) the cycle of years in the yovel cycle. (2) the year of the shemitah cycle. (We are now in the midst of the sixth year of the shemitah cycle; next year we shall have the privilege of observing the shemitah year!) (3) the month. (4) date of the month. (5) the day of the week. (6) the hour of the day. and (7) the place of the event. Interrogation, on the other hand, deals with the event itself. What transpired? If for example, a loan is at issue, who lent the money to whom? How much was lent? What were the terms of repayment? What was the type of currency loaned?
There was one fundamental difference between inquiry and interrogation. In the area of inquiry there must be at least two witnesses who agree on every single point. Lacking two witnesses who agreed on all answers, then their testimony is discarded. Or even if one said he did not know the answer, then all his answers are discarded.
In the area of interrogation, on the other hand, if a witness said that he could not remember, his testimony was not discarded.
As seen from the above, the failure to agree or even to know the answer to one of the inquiries would disqualify the witness. Banks and individuals would be loath to extend credit or to enter into any type of commercial transaction. In order to promote commerce and credit it was therefore decreed, that in commercial transactions, the witnesses would no longer be questioned as to matters designated as inquiries. Under the type of questioning designated as "interrogation" the details of the transaction would be examined including time and place to the extent necessary to explain the transaction.
In a trial of the issues, after the litigants recite the pleas, the plaintiff calls his witnesses and/or testifies himself. When I preside at such a Beth Din trial, I usually give the plaintiff and his witnesses wide latitude to tell their versions of the events. There is no jury that can be fooled by the testimony, which sometimes consists of hearsay testimony, that is "someone told me", or "it stands to reason" and the like. Therefore the defendant and his attorney, if he has one, are asked not to interrupt the testimony of the plaintiff and/or his witnesses. When the plaintiff has finished testifying, the defendant and/or his attorney can examine the plaintiff. I make it a practice, even if the defendant has an attorney, that in addition to his attorney questioning the plaintiff, the defendant may also examine the plaintiff. I tell them that I prefer that they hold a conference and formulate questions to be asked by the attorney, but often the defendant knows more about the case and can ask more incisive questions. Throughout he entire procedure the members of the Beth Din ask questions to clarify what has been testified to. Since the Beth Din will decide the case, the judges have to fully understand points that are not clear or have been omitted for a fuller understanding of the facts of the case. The same procedure is followed for the witnesses produced by the plaintiff. When all of the witnesses on behalf of the plaintiff have concluded, and they have been examined by the defendant and/or his attorney and by the members of the Beth Din, the defendant will make a motion to dismiss the plaintiff's case. That means, assuming that everything that the plaintiff and his witnesses have stated are taken to be true, the defendant still has no liability to the plaintiff.
Assuming that the Beth Din denies the motion of the defendant to dismiss the plaintiff's case, the defendant now presents his case, by the testimony of the defendant and/or his witnesses. The same type of examination by the other side and by Beth Din. It is to be remembered that in lesson 33 it stated, "The judges of the Beth Din are duty bound, and it is a praiseworthy act on their part, to attempt to persuade the litigants to have their lawsuit settled by rules of arbitration rather than by strictly legal principles." This gives the Beth Din a great deal of flexibility. It relieves the Beth Din of administering Torah oaths in cases where the defendant admits part of the plea of the plaintiff or the plaintiff produces only one witness rather than two witnesses to substantiate his claims. I make it clear from the outset that I will not sit on a Beth Din panel if both litigants insist on a din Torah rather than arbitration where rules of evidence and standards of proof are more liberal.
When I sit on a Beth Din, I usually agree with the other judges that there are three criteria for the Beth Din to follow. (1) Whenever possible, the testimony of the witnesses should be given credence, (2) if witnesses contradict each other, the party who produced these witnesses be given a chance to explain the contradictions; and (3) there must be complete testimony from each witness.
There are many rules regarding combining testimony. What emerges from the laws is that Beth Din has wide latitude in permitting the witnesses to testify and then decide whether to give credence to their testimony and whether to combine testimony and/or witnesses.
The Beth Din should have on it persons who will know how to evaluate and enforce the laws as they pertain to testimony of witnesses. I've served on Beth Dins and when we, the judges, sat down to deliberate, we felt that something was wrong and the witnesses should not be believed, or else we combined testimony since that was the only way that we felt we could do justice in the situation.
The next lesson will begin with the topic of who are eligible to be witnesses in Beth Din.
The subject matter of this lesson is more fully discussed in Volume 1, Chapter 30, of A Restatement of Rabbinic Civil Law by E. Quint and on sale at local Judaica bookstores.
Address comments to quint@inter.net.il
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