Separation of Witnesses.—The witnesses were required to give their testimony separately and always in the presence of the accused.
Daniel said to the people concerning the two old men who testified against Susanna: "Separate them, and I will examine them."[142]
By this was meant that witnesses could not be examined until they had been separated in conformity with law. Under modern practice in most jurisdictions, witnesses may be separated and examined one at a time out of the presence of each other. The rule of separation is, however, generally optional with the litigant and discretionary with the court; the ruling of the court being usually reversed only in case of abuse of discretion. But among the Hebrews the requirement was mandatory and imperative. It had to be observed in every case.
Mode of Examination of Witnesses.—The mode employed by the Hebrew judges in examining witnesses is without a precedent or parallel in the jurisprudence of the world. Two distinct sets of questions constituted the examination. The first set consisted of a series of interrogations relating to the time and place of the alleged crime. These questions were prescribed by law and could not be varied in the slightest. The technical name applied to the first set of questions was Hakiroth. The second set was termed Bedikoth[143] and included all interrogations touching the investigation of relevant circumstances and corroborative facts surrounding the case. The following seven questions, constituting the Hakiroth, the first set of questions, were propounded to each witness: "Was it during a year of jubilee? Was it in an ordinary year? In what month? On what day of the month? At what hour? In what place? Do you identify this person?"[144]
These seven questions were framed and applied in conformity with a fundamental principle of the Hebrew law of evidence that the testimony of any witness, if false, should admit of being impeached and overthrown by proof of an alibi against the witness. It seems, indeed, that proof of an alibi against the witness was the only method of impeachment known to Hebrew law. It may be readily seen that the only statements capable of being thus contradicted were confined to those relating to the details of time and place. To illustrate: Suppose that two witnesses had testified that the alleged crime was committed in a certain town at a certain hour; suppose that it subsequently appeared in evidence that, at the stated time, one or both these witnesses were in a neighboring town. In such a case, the witness or witnesses stood impeached, their testimony was overthrown and they, themselves, became subject to the pains and penalties of perjury.
The failure of any witness to answer satisfactorily any of the seven questions above mentioned entitled the accused to immediate acquittal. Any material disagreement between two or more witnesses required by the law in answer to any one of these questions, likewise entitled the prisoner to immediate discharge. These seven questions seem to have been framed not so much to develop truthful testimony and to promote the ends of justice from the standpoint of the State as to enable the defendant to attack and destroy the testimony of hostile witnesses. The rule and the reason thereof are thus clearly and succinctly stated by Mendelsohn:
The several particulars referring to time and place must be furnished with the greatest possible precision and certainty, and that by the whole party of witnesses. The slightest disagreement on the part of the witnesses in regard to any one of these particulars invalidates the entire testimony. Even where a number of witnesses greater than that required by law, as three, appear, and two agree on every point, but the third differs from them as to more than one day, or more than one hour in the day, the whole testimony is invalidated. For time and place are the only points which affect the person of the witness himself; he not being able to be at more than one spot at any one time; time and place are, accordingly, the only grounds on which the witness may be confuted and duly punished.
The second set of questions, termed the Bedikoth, embraced all matters not brought out by the Hakiroth, such as would form the basis of legitimate modern direct or cross examination. The following kinds of evidence, however, were not admissible under either set of questions: Evidence of character, good or bad; previous convictions of the accused; and evidence as to the prisoner's antecedents. Such matters were not relevant, under Hebrew law, and could not be urged against the prisoner.[145]
False Witnesses.—Hebrew law provided that false witnesses should suffer the penalty provided for the commission of the crime which they sought by their testimony to fix upon the accused.
The Scriptural authority for this rule is the following: