Warning given to witnesses before testimony. Neither Biblical nor rabbinical law requires a witness to confirm his testimony by an oath. Jewish casuists are of opinion that the witness who would not tell the truth without an oath would not scruple to depose a falsehood with an oath (Tosef., Ḳid. 43b, s.v. "Hashta"; compare Josephus, "B. J." ii. 8, § 6).

Instead of an oath, rabbinical law prescribes in criminal cases a preliminary caution or admonition, in the course of which the witnesses are exhorted to testify to such matters only as have come under their personal observation, and are warned not to state anything based on imagination or hearsay. They are told that the court will subject them to a careful examination and a searching cross-examination. Finally, the formal caution laid down in the Mishnah (Sanh. iv. 5; Maimonides, "Yad," Sanh. xii. 3) proceeds as follows:

Responsibilities of Witness.

"Know ye that the responsibilities devolving upon the witness in criminal cases are vastly more serious than those of the witness in civil suits. In civil suits a man makes good the losses sustained through his falsehood, and is forgiven; but in criminal cases the blood of the victim of falsehood and the blood of his possible offspring to the end of time, which is cut off by his undeserved death, fall on the head of the false witness. That such is the case is evident from God's rebuke administered to Cain, who slew his brother (Gen. iv. 10), where it is said, 'The voice of thy brother's bloods cry unto me.' Now, since the Bible says 'Thy brother's bloods (), and not 'Thy brother's blood,' it teaches that Cain was considered guilty of shedding the blood of Abel's possible progeny, as well as that of Abel himself. Also the fact that, at the beginning, God created one man only, should teach thee that whosoever destroys a single innocent life is as guilty as if he had destroyed a whole generation; and that, on the contrary, whosoever saves a single innocent life is as meritorious as if he had saved a whole generation. . . . Say not, however, 'Why should we mix ourselves up in these troubles?' Scripture declares (Lev. v. 1), 'The witness who hath seen or known, and doth not tell it, shall bear his iniquity.' Nor must ye scruple about becoming the instruments of this man's death. Remember the Scriptural maxim (Prov. xi. 10), 'When the wicked perish there is shouting.'"

Object of Warning.

The object of the closing admonition is to remind the honest man of his duty to bear witness even against a person tried for his life, to impress upon him the verity that the escape of the guilty is an injury to the innocent, while the punishment of the wicked is a benefit to the public. Therefore, although the criminal's deed can not be undone, no mawkish compassion should prevent the giving of testimony leading to conviction (Deut. xix. 13; Sifre, l.c. 187); therefore, too, the honest witness must not scruple to testify against the accused, in the event of whose conviction he, the witness, must act as executioner (Deut. xvii. 7; Sifra, Ḳedoshim, viii.; Sifre, Deut. 89). See Capital Punishment, Warning.

  • Maimonides, Yad ha-Ḥazaḳah, Sanh. xii. 3.
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