The Trial of Jesus from a Lawyer's Standpoint, Vol. 1 (of 2) / The Hebrew Trial

by Walter M. Chandler

At the close of this solemn exhortation, the examination of the witness commenced. The Hakiroth, seven questions prescribed by law, touching the identity of the prisoner and fixing the elements of time and place, were asked. They were as follows: Was it during a year of jubilee? Was it an ordinary year? In what month? On what day of the month? At what hour? In what place? Do you identify this person?

These questions being satisfactorily answered, the next step was a rigid examination into the facts and circumstances attending the commission of the crime and the connection of the accused therewith. This process of examination and cross-examination was termed the Bedikoth and embraced all questions not included in the Hakiroth which tended to establish the guilt or innocence of the prisoner at the bar.

When the witnesses for the Commonwealth of Israel had been examined, witnesses for the defendant were heard. The accused was also urged to say anything he wished in his own behalf. As we have before pointed out, the Hakiroth questions as to time and place could be rebutted only by establishing an alibi against the witnesses for the state. If such an alibi was proved, the defendant was acquitted and at once discharged. A contributor to the "Jewish Encyclopedia," discussing this point of procedure, says: "It has been shown under Alibi how a 'set' of witnesses may be convicted as 'plotters' by another set or sets proving an alibi on them. But the opposite party may prove an alibi on the convicting set or in some other way show that the facts testified to by the first set were impossible or untrue. Under such circumstances, a modern judge or jury would weigh the credibility of the witnesses and the probability of their stories and decide between them accordingly. The sages did not trust themselves or their successors with this discretion. If there were no indicia or fraud, they held that as some one was evidently lying they could not decide which of them it was, and that there was no evidence on the point."[173] The result was an acquittal.

If material contradictions in the testimony of the witnesses were shown by the Bedikoth, the trial was at once terminated and the accused was free. 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 the two or more witnesses required by the law in answer to any of these questions likewise entitled the prisoner to an immediate discharge. If the prosecuting witnesses relied upon documentary, circumstantial or hearsay evidence to convict, their testimony was at once rejected and the defendant was released.

But if the accused failed to establish an alibi against the prosecuting witnesses in the matter of the Hakiroth; and if the Bedikoth developed evidence fairly consistent and uncontradictory; and if the testimony of the witnesses was purely oral, that is, was not documentary, hearsay or circumstantial, then there was legally admissible evidence to lay before the Sanhedrin. The competent witnesses who could render relevant testimony were then led, one at a time, before the general body and required to testify.

The Debates and Balloting of the Judges.—All the evidence, pro and con, having been adduced, the tribunal began a full discussion of the case, preliminary to casting ballots. Arguments could be begun only on behalf of the accused. Nothing was permitted to be said against him until one of the judges had urged something in his behalf, and had said: "As I view the matter, and according to such and such evidence, it seems to me that the prisoner should be acquitted." The discussion became general for and against the accused. The entire record was then overhauled. Each item of evidence was carefully considered and subjected to the minutest criticism. Contradictions were noted and extenuating facts pleaded. If one of the disciples occupying one of the three rows of seats could offer any cogent or valid reason why the prisoner should not be convicted, he was invited to take his seat among the judges, and was regarded as a member of the court during the remainder of the day. If his argument resulted in the acquittal of the accused and saved a human life he was made a permanent member of the court. On the other hand, if one of the disciples had anything to say that would tend to injure the defendant he was not permitted to raise his voice.

When the entire case had been exhaustively discussed, the argument was closed and the balloting on the guilt or innocence of the accused commenced. The scribes were in readiness to record the votes and note the reasons assigned therefor. The youngest members of the tribunal were required to vote first, in order that they might not be unduly influenced by the example of their seniors in age and authority. The high priest, who was generally president of the Sanhedrin, addressed a gentle admonition to the youngest member, who was never less than forty years of age, to render a free and untrammeled verdict, and not to be awed or influenced by the patriarchs of the court. This admonition was repeated in the case of each youthful member of the tribunal. When the balloting commenced, each judge arose in his place and voted; at the same time making a short speech explanatory of his ballot. To secure a conviction it was not necessary that the members of the Sanhedrin should be unanimous. Indeed a peculiar rule of Hebrew law provided that if the verdict was instantaneous and unanimous it was invalid and could not stand. If the prisoner had not a single friend in court, the element of mercy was wanting in the verdict, said the ancient Hebrews, and the proceedings were regarded in the light of conspiracy and mob violence. A majority vote of at least two members was necessary to convict. A majority vote of one in his favor would acquit. Any majority amounting to two or more that did not reach unanimity was sufficient to condemn. If the accused was tried before a Minor Sanhedrin of three-and-twenty members or before the Great Sanhedrin with a bare quorum (twenty-three members, the same number as the full membership of a Minor Sanhedrin), a vote of thirteen members was necessary, in either case, to convict. If eleven judges were for conviction and twelve for acquittal, the prisoner was discharged at once; a majority of one vote being sufficient for that purpose. If twelve were in favor of conviction and eleven for acquittal, the condemnation of the accused was impossible; a majority of at least two being required to condemn. According to some writers, an acquittal was the result in such a case. According to others, in such a contingency the following novel expedient was employed to reach a verdict: From the first row of disciples two additional judges were selected and added to the original twenty-three members. Balloting then commenced anew. If the vote resulted in a majority of at least two against the prisoner, he stood convicted. If not, two more disciples were added from the first row in front and this process of increasing by twos the number of the Sanhedrin was continued until the requisite majority was secured. If it happened that the constant additions finally raised the number to seventy-one, the membership of the Great Sanhedrin, the process of increasing by twos was discontinued, and final balloting then began. If thirty-six voted for conviction and thirty-five for acquittal, the whole case was reargued for a reasonable time until one of the thirty-six yielded and declared in favor of acquittal. In case the thirty-six members persevered in their determination to convict, the prisoner was discharged.

At any stage of the trial, from the beginning with the three-and-twenty judges through all the successive additions of new members, a majority vote of one or more in favor of the accused would acquit; a majority of two or more, not amounting to unanimity, would convict.

In case of an acquittal the prisoner was immediately released and the trial was closed. In the event of conviction sentence could not be pronounced until the next afternoon and the session of the court was accordingly adjourned until the following day. Upon adjournment the members of the Sanhedrin with measured step and solemn mien left the chamber in which the trial had been conducted. Outside the judgment hall, in the open street, the judges formed themselves into groups or knots of five or six to discuss the trial and to lament the awful misfortune impending over Jerusalem; for such was the Hebrew conception of the execution of a son of Israel. The nucleus of each group was formed of elders of the Sanhedrin; the younger members came up from behind, leaned over between the shoulders of the patriarchs, and listened attentively and devoutly to what they were saying about the case. Gradually the groups broke up and the judges linked arm in arm, by twos, walked slowly homeward, still discussing the facts and arguments adduced at the trial. Finally they parted and retired to their respective homes. No heavy food, like meat, and no intoxicating beverage, were taken for the remainder of the day or during the night. Nothing was done that would incapacitate them for correct thinking. At sunset they began to make calls upon each other for the purpose of examining more carefully and debating more fully the issues of the case. When these visits were concluded, in the early evening, each judge retired to the privacy of his own home to sleep, meditate, and pray. At the dawn of day, they arose and prepared to resume again the solemn responsibilities of their office. The morning sacrifice was offered and the judges again assembled at sunrise in the hall of justice. They reseated themselves in the form of a semicircle; the prisoner was again led to the bar of the court; the witnesses were again produced; and the scribes, bringing with them the minutes of the former meeting, again took seats in their accustomed places.

The second part of the trial then began. It must be remembered that there were two trials of every Hebrew capital case. The second day was not a trial de novo; but was a proceeding in the nature of an appeal and was intended to accomplish a review of the proceedings of the previous day. Additional testimony, however, which had been discovered after the close of the first trial, might be introduced. But the record of facts seems not to have been considered so important as the question of the fixed opinions of the judges. Each member of the Sanhedrin was required, on the second day, to vote again and to declare anew his notions concerning the guilt or innocence of the accused. The statements of each judge were carefully noted by the scribes and compared with his statements at the previous day. If any judge voted for conviction at the second trial and founded his judgment on reasons and arguments radically different from those of the first day, his verdict was rejected. A member who had voted for acquittal on the first day was not permitted to change his vote for conviction on the second day. But one who had voted for condemnation at the first trial, might, by giving valid reasons, vote on the second day for acquittal.[174]