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Evidence

Non-Evidentiary Proceedings in Biblical Law

The revelation of divine law is found not only in legislation but also in adjudication in particular cases (cf. Lev. 24:12–13; Num. 15:32–34; 27:1–8; Deut. 1:17), whether through Moses or judges or priests (Ex. 28:30; Num. 27:21; Deut. 17:9–12; 21:5; 33:8–10), and God requires no evidence: He is all knowing and His decision is infallible (cf. Gen. 31:50). That adjudications without evidence continued to survive in judicial, nondivine proceedings is demonstrated by the report of the trial held by King Solomon between the two women each claiming the same child (I Kings 3:24–25) and by contemporaneous trial reports from other civilizations. Judges appear to have devised their own tests of credibility.

Evidentiary Proceedings in Biblical Law

The existence and availability of human witnesses and other modes of proof seem from earliest times to have been part of judicial proceedings (cf. Ex. 22:9, 12). Witnesses appear to have testified to the facts prior to God being asked to pronounce the law (Num. 15:32–35); and eventually it came about that a person "able to testify, as one who has either seen or known of the matter," was guilty of an offense if he failed to come forward and testify (Lev. 5:1).

Evidence in Criminal Cases

PROOF OF GUILT

Biblical law had already established that in criminal cases the evidence of at least two witnesses is a sine qua non of any conviction and punishment (Deut. 17:6; 19:15). This rule appears to have applied both in judicial and in priestly adjudications (cf. Deut. 19:17), and was interpreted as prescribing a minimum burden of proof, from which no later legal development could in any way derogate.

Post-biblical law thus concentrated on devising measures to assure the greatest possible reliability of witnesses' testimony: they were cautioned by the court that they would be rigorously cross-examined, that they must not rely on hearsay or on opinions, and that they must be conscious of their grave responsibility – since a human life was at stake (Sanh. 4:5). They were in fact subjected to cross-examination by the court – each witness separately – and their evidence would not be accepted unless their respective testimonies were found to be consistent with each other in all relevant particulars (Sanh. 5:1–4; Maim. Yad, Sanh. 12:1–3; for particulars of the cross-examination of witnesses and their qualifications, see *Witness).

The further rule was evolved that it was not sufficient for witnesses to testify to the commission of the offense by the accused: they also had to testify that the accused had been warned by them beforehand against committing that particular offense (hatra'ah) – that is, that the accused knew that in committing the act he was violating the law (Tosef. Sanh. 11, 1; Sanh. 8b; et al.). Elaborate rules were laid down for the identification of the accused by the witnesses, and where the court was not satisfied beyond any doubt as to such identification, the accused was discharged even before the witnesses were examined on the merits of the case (Maim. ibid.). According to some scholars, he was also thus discharged where the victim of the offense had not been identified by the witnesses to the satisfaction of the court (see Leḥem Mishneh, ibid.).

EVIDENCE IN DEFENSE

Whereas a witness testifying in a criminal case was not allowed to raise a point in defense of or against the accused (Maim. Yad, Edut 5:8) – a witness being disqualified from performing the function of a judge – when the evidence of the prosecuting witnesses had been found admissible and prima facie conclusive, public announcements had to be made inviting any person able to raise a point in favor (zekhut) of the accused, to come forward and speak (Sanh. 6:1). While the charge against the accused could be proved only by the viva voce evidence of witnesses, any shred of evidence from which a defense could be inferred would be used in his favor (Rashi, Sanh. 42b). For this purpose, a favorable point is not necessarily a rebuttal of the testimony of the prosecuting witnesses, but merely any fact or circumstance likely to arouse in the mind of the court a doubt as to the guilt of the accused; hence such points did not automatically result in an acquittal, but they were sufficient justification for the case to be remitted to the court for reconsideration – even four or five times. There is no explicit presumption of innocence in Jewish law; the requirements of proof of guilt are, however, so stringent and rigorous, and the possibilities of establishing a valid defense so wide and flexible, that a conviction is much more difficult and an acquittal much easier to obtain than under a rebuttable presumption of innocence.

POST-TALMUDIC LAW

In talmudic law the standards of proof required, even in criminal cases, were largely reduced where the jurisdiction rested on considerations of the "emergency" (hora'at sha'ah; see *Extraordinary Remedies). After the virtual cessation of jurisdiction in capital cases (see *Capital Punishment), and particularly in post-talmudic law, all criminal jurisdiction rested on considerations of "emergency" to which the provisions relating to the dispensation from the normal rules of evidence and procedure were held to apply. The rules of evidence prevailing in the Sanhedrin were held inapplicable in the courts of the Diaspora, when they were called upon to enforce public order by the imposition of *fines or *flogging (Resp. Rashba, vol. 4, no. 311).

Evidence in Civil Cases

BURDEN OF PROOF

It was in the law of evidence in civil cases in which the genius of the talmudic jurists, unfettered by scriptural restrictions, could develop fully. The obstacle that there was to be "one manner of law" (Lev. 24:22) in criminal and civil cases alike (Sanh. 4:1) was overcome with the assertion that the Torah takes pity on the money (property) of the people of Israel, and if the standards of proof in civil cases were as strict and rigorous as in criminal cases, nobody would lend his neighbor any money anymore, for fear the borrower would deny his debt or the memory of a witness would fail him (TJ, Sanh. 4:1). Accordingly, a balance had to be struck between the exigencies of formal justice which required the burden of proof to be on the initiator of the proceedings (Sif. Deut. 16; BK 46b) and commercial and judicial convenience which required the greatest possible elasticity in handling and discharging that burden.

PRESUMPTION OF RIGHTFUL POSSESSION

The fundamental rule that the plaintiff has the burden of proving his claim (hamoẓi mi-ḥavero alav ha-re'ayah) is based on the presumption (*ḥazakah) of the rightful possession by the defendant of the chose in action – i.e., the thing (or money) claimed (ḥezkat mamon): so long as the defendant's possession was not proved to be unrightful, it will not be disturbed – hence a defendant in possession is always in a better position than the plaintiff (Shevu'ot 46; Maim. Yad, To'en ve-Nitan, 8:1; Sh. Ar., ḤM 133:1). But in order to raise the presumption of title, the possession must be accompanied by a claim of right (BB 3:3 and Codes); where the defendant in possession does not claim a specific right thereto, the burden is shifted to him to prove a right to retain the chose in action. Or where a claim is made according to custom, and the defense (that is, the possession) is contrary to custom, such as in a claim for workmen's wages (TJ, BM 7:1, 11b), the presumption of rightfulness operates in favor of the plaintiff and shifts the burden of proof onto the defendant. In an action between heirs, where the defendant has seized part of the estate, his claim of right is not any better than that of the plaintiff, and he will have to prove that his possession is rightful (Yev. 37b and Tos. ibid.). Where a man was seen to take a chattel out of a house, it was held to be on him to prove that he took it rightfully (BB 33b; Hai Gaon, Sefer ha-Mikkaḥ veha-Mimkar, ch. 40), presumably because his possession was too recent to give rise to any presumption to that effect. Conversely, past possession which had meanwhile ceased (ḥezkat mara kamma) would give rise to a presumption of title only where the other party was not in possession either (BM 100a). These rules do not apply to possession of land and houses but only of money and chattels – for lands and other immovables there must be an uninterrupted possession of three years (BB 3:1), coupled with a claim of right (BB 3:3), in order to give rise to a presumption of title.

PRESUMPTIONS AND QUASI-PRESUMPTIONS OF CONDUCT

In order to mitigate the burden of proof and to simplify the judicial process, the sages have, presumably from their own accumulated judicial experience, established a vast number of quasi-presumptions, rooted in the psychology of human conduct, which apply to every litigant before the court, unless and until the contrary is proved. To give a few examples: a man does not waste his words or his money in vain without good cause (Ket. 58b, 10a); nor will he stand by inactive when his money is taken or his property endangered (Shab. 117b, 120b, 153a; Sanh. 72b) or when a wrong is being done or threatened to him (BB 60a). A man does not pay a debt before it falls due (BB 5a–b); nor does a man tolerate defects in a thing sold to him (Ket. 75b–76a). On the other hand, no man buys a chattel without having first seen and examined it (ibid.). A debtor will not easily lie in the face of his creditor (BM 3a), nor a wife in the face of her husband (Ket. 22b), nor anybody in the face of a man who must know the truth (Tos. Ket. 18a; BK 107a). A man is not expected to remember things which do not concern him (Shevu. 34b). A man will not leave his house empty and his household unprovided for (Ket. 107a). However, he is apt to understate his fortune so as not to appear rich (BB 174b–175a), and will rather have one ounce of his own than nine ounces of his neighbor's (BM 38a); nor will he sell and dispose of any of his goods unless he has to (BB 47b). No man commits a wrong unless for his own benefit (BM 5b) and the purpose of an act is its normal consequence ("everybody knows why the bride gets married"; Shab. 33a). No person is lighthearted in the hour of his death (BB 175a), or defrauds the Temple treasury (hekdesh; Shevu. 42b; Ar. 23a). Apart from such general presumptions, there are special ones relating to particular contracts or offices, as for example the presumption that an agent has duly performed the duties of his agency (Git. 64a), or that a priest has duly performed the duties of his office (TJ, Shek. 7:2, 50c).

PRESUMPTIONS OF CREDIBILITY (NE'EMANUT)

Much stronger than these general and special presumptions of conduct are two further categories of presumptions, which are – theoretically at least – irrebuttable (comparable to, but not identical with, the Roman praesumptiones iuris et de iure). One is the presumption of credibility (ne'emanut) and the other is the presumption of common sense (umdana mukhaḥat).

The presumption of credibility is primarily based on the notion that the party or witness concerned has an intimate knowledge of the matter in issue and has no reason to distort it. Thus, where a man says he has divorced his wife, his word is taken as conclusive for the court to permit her remarriage – because the matter is within his own knowledge, and he has no reason to distort it, as he could even now divorce her any time (BB 134b–135a, but see Maim. Gerushin 12:5; Sh. Ar., EH 152:1; see also *Divorce). Or, a woman is believed when she says that her first husband has divorced her – because the matter is within her own knowledge and she need not have disclosed her previous marriage at all (ha-peh she-asar hu ha-peh she-hittir; Ket. 2:5). Or, an action will not lie for land which the defendant had told the plaintiff he had bought from the plaintiff's father, although the defendant could not prove the purchase: he will be believed that he bought it, because he need not have disclosed that it had ever belonged to the plaintiff's father in the first place (Ket. 2:2). The law would be different where the ownership of the plaintiff's father could be proved by witnesses (ibid.).

Some of these irrebuttable presumptions of credibility are based on Scripture, e.g., where a father says he has given his daughter in marriage (Deut. 22:16: "I gave this man my daughter to wife"; Ket. 22a), or a father's nomination of his firstborn son (BB 127b, following Deut. 21:17). There are, however, also presumptions of credibility which rank in weight with the rebuttable presumptions of conduct – that is, they are capable of being displaced by express evidence to the contrary. A man is presumed not to lie about matters which are easily ascertainable (Yev. 115a); and a man is presumed to remember matters which are extraordinary and astonishing (Hul. 75b). Conversely, a man whose words were proved false on one point, will no longer be believed on other points in the same case; notwithstanding any presumption in his favor, he will be required to adduce express proof for the other points (BM 17a; Maim. Yad, Gerushin 13:1). Credibility is also presumed for statements made for purposes unconnected with the litigation (mesi'aḥ lefi tummo: Git. 28b; cf. BK 114f.). A man is believed where his statement (e.g., that he had become a convert on his own, without a bet din) disqualifies him (Yev. 47a), but no such statement is accepted as proof of disqualification of anybody else, even his wife or children (ibid.).

PRESUMPTIONS OF COMMON SENSE (UMDANA MUKHAHAT)

The presumption of common sense applies to bring acts or conduct into conformity with reason or propriety: the presumption is that a person acts reasonably and properly, notwithstanding any outward appearance to the contrary; and his acts will therefore be judged not according to appearances, but according to what, in reason and propriety, they ought to have been. Thus, a man is presumed not to give away the whole of his property during his lifetime; hence where a dying person disposed of all his property and then recovered, his act will not be enforced by the courts, and he is regarded as having acted in the mistaken belief that he was going to die (BB 146b). The same applies to transactions made for an ulterior motive; where a woman had given away her property in order to deprive her future husband of his legal rights thereto, and on divorce reclaimed the property, the court is reported to have torn the deed of gift into pieces (Ket. 78b; Maim. Zekhiyyah u-Mattanah 6:12). A husband giving his property to his wife is irrebuttably presumed to have made her only his trustee and not to have deprived himself and his children of all his property (BB 131b; for a list of these presumptions see Piskei ha-Rosh Ket. 11:9).

PRESUMPTIONS OF CONDITIONS (UMDANA BE-GILLUI DA'AT)

While these presumptions apply whether or not the mistake or motive was expressed or admitted, there are other cases in which these or similar presumptions apply only where such mistake or motive can be inferred from express statements made at the time of the transaction (umdanot be-gillui da'at). Thus, where a man disposed of his property, mentioning that he had decided to emigrate, and then he did not in fact emigrate, he will be presumed to have disposed of his property only conditional on his emigration (Kid. 49b). Or, where a man had made a will bequeathing his property to strangers, because he had heard that his sons had died, and then it appeared that they had not died, his will was set aside as having been made by mistake (BB 132a). Even where a vendor had stated, at the time of the sale, that he sold in order to have the money for a certain purpose, and that purpose could not afterward be effected, he was held entitled to have the sale set aside (Ket. 97a). It has been said that reservations giving rise to such presumptions must, however, always be reasonable: the man desiring to emigrate, for instance, could have the sale or gift of his landed properties set aside if the emigration did not transpire, but not the sale of his personal effects which he would be assumed to take with him on his emigration (Tos., Ket. 97a).

JUDICIAL NOTICE (ANAN SAHADEI)

All these presumptions and quasi-presumptions are being taken notice of by the court ex officio (anan sahadei; Resp. Rosh 34:1; 81:1), and in this respect they are similar to matters of custom and usage (cf. TJ, Pe'ah 7:6, 20b). Not unlike the concept of "judicial notice" in modern law, they replace formal evidence which would otherwise have to be adduced by the party on whom the burden of proof lies: in the language of the Mishnah, the disputant of a presumption of credibility in a given case would say, "we do not live from his mouth," but he has to adduce proof to verify his words (cf. Ket. 1:6–9). In some cases, especially those involving marital status, courts will take notice also of common repute or rumor (kol; Git. 89a; Ket. 36b; et al.; on presumptions see also *Ḥazakah).

MODES OF PROOF

Where neither presumption nor custom avails the party on whom the burden of proof lies, he may discharge it by adducing evidence, either in the form of an *oath, or in the form of a shetar, or in the form of the testimony of *witnesses.

EVALUATION OF EVIDENCE

Notwithstanding the formal and apparent sufficiency of the evidence adduced, however, the court is not bound by it, but has to weigh its reliability and satisfy itself of its truth before deciding the case in accordance therewith: it is a matter for the mind and heart of the individual judge, and no hard-and-fast rules can be laid down (Maim. Yad, Sanh. 24:1–2).

FRAUD ON THE COURT

Where the judge has gained the impression that the case before him, though duly proven, is a fraud (din merummeh), Maimonides holds that he ought to disqualify himself and leave the case to be decided by some other judge (ibid. 3); but the better opinion appears to be that he ought to dismiss the case there and then (Resp. Rosh 68:20; ḤM 15:3). Where it was the defendant who had deceived the court, judgment would be given in favor of the plaintiff, so as not to let "the sinner reap the fruits of his sin" (Resp. Rosh 107:6). The same rule would apply where a party sought to prevent the court from discovering the whole truth, whether by refusing to submit to cross-examination, or by suppressing evidence, or by any other means (ibid.).

ADDITIONAL EVIDENCE

Even though a case has been duly proved and decided, any party claiming that new evidence has been discovered, which might change the outcome of the proceedings, is entitled to have the case reopened (Sanh. 4:1). The only exceptions to this rule are, first, where the court has fixed a time limit for the adducing of additional evidence and that time has expired; and second, where the party has expressly declared in court that there is no additional evidence available to him (Sanh. 3:8) – in these cases it is apprehended that the additional evidence might have been fabricated (Rashi, Sanh. 31a).

FORMAL EVIDENCE (GILLUI MILTA BE-ALMA)

It is not only by vesting a wide discretion in the judge but also by legislatively relaxing the rules of evidence in proper cases that the law seeks to avoid any possible hardships which may arise from the objective difficulties of obtaining evidence. Such legislative relaxations are to be found particularly in respect of routine matters. Thus no formal evidence is required for the identification of litigants who identify themselves; even a relative or a minor can identify a brother-in-law for the purpose of ḥaliẓah (Yev. 39b; see *Levirate Marriage) or the evidence of one witness (who would nowadays be called a "formal" witness) is sufficient to establish matters of physical examination, such as the appearance of signs of puberty or the symptoms of a disease – matters which have to be proved, not because they can be seriously contested but in order "that judgment may be rendered without a stammer" (Rashi, Ket. 28a).

LEGISLATIVE RELAXATION OF RULES OF EVIDENCE

In matters of marital status, there are many situations where the law contents itself with the evidence of a disqualified or a single witness, or hearsay, or other generally inadmissible modes of proof, because, in the language of Maimonides, these are generally matters which can be verified by other means and on which a man will not normally lie, as e.g., the death of another man; "and while the Torah insists on the testimony of two witnesses and all the other rules of evidence in cases which cannot be proved otherwise, as e.g., whether A killed B or A lent money to B, in these matters in which it is unlikely that any witness would lie, have the sages seen fit to relax the rules and to accept the evidence of bondswomen, and in writing, and without cross-examination, so that the daughters of Israel may not lose their remedy" (Gerushin 13, 29).

BIBLIOGRAPHY:

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