The reasons above stated lie at the foundation of all modern provisions
framed for the protection of the accused against precipitate
self-condemnation. But, strange to say, these reasons were not urged by
the framers or interpreters of Hebrew law. The explanation offered by
the Talmud was simply this: "He is his own kin"; and, as we have seen,
relatives were never permitted to be witnesses. A modern Jewish writer
has assigned the following reason for the rule forbidding a confession
to form the basis of a conviction: that, if the prisoner were innocent,
he should not be permitted to incriminate himself by a false confession;
if he were guilty, he was a wicked person, and, therefore, incompetent
to testify under Hebrew law.[151] This rule was not enforced, however,
against the defendant when testifying in his own behalf; an additional
proof of the merciful regard of Hebrew law for the unfortunate position
of a human being charged with crime. His testimony, though self-serving,
was given due weight when urged in his own defense. Little attention was
paid to it when he testified against himself.
_Relevancy of Hebrew Evidence.--Hearsay evidence was irrelevant under
Hebrew law._ "Hearsay evidence was barred equally in civil as in
criminal cases, no matter how strongly the witness might believe in what
he heard and however worthy and numerous were his informants."[152]
_Circumstantial evidence was irrelevant under Hebrew law._ "The sages
had very little more confidence in circumstantial evidence given for the
purpose of 'taking money out of' the defendant's pocket, than in that
given for the purpose of inflicting the penalty of death or stripes.
Ket. ii. 10 has been cited, according to which a witness may testify
that, when a boy, he saw a woman walk about in maidenly attire; the
object being to prove that she married as a maiden, not as a widow, and
is therefore entitled to a greater sum for her jointure. In discussing
this clause, the Talmud remarks that this is only arguing from the
majority of cases; for though in most cases those wearing maidens'
attire are not widows, occasionally they are; and money ought not to be
taken out of a man's pocket on reasoning from the greater number of
cases. In fact, circumstantial evidence was generally rejected."[153]
There were occasional exceptions to the rule in the administration of
Hebrew civil law, but none in criminal law. In criminal cases no Hebrew
prisoner could be convicted upon circumstantial evidence. Every link in
the chain of testimony had to be forged by the direct evidence of at
least two competent witnesses; else the accused was acquitted and
discharged.
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