Crime and Punishment in Jewish Law: Essays and Responsa

By Walter Jacob; Moshe Zemer | Go to book overview

when a Jew chose to take his case to a non-Jewish court, something that was decried by the Jewish authorities.

The earliest record of a Jew handing a Jewish criminal who had injured non-Jews to a gentile court came from the Gaonic period (700-1000 C.E.; J. Mueller, Mafteah, p. 182). The responsa literature contains numerous examples of Jews testifying in nonJewish courts and doing so willingly when the law of the land demanded it.

The codes summarize various other considerations. Clearly, one may testify to save oneself if punishment is threatened; then one is moser be-ones, and should testify before a non Jewish court ( Tur, Hoshen Mishpat 388; Shulhan Arukh, Ch.M. 388.8ff; Yad, Hil. Chovel 8.2).

Furthermore, if the withholding of testimony will harm the community, then handing such an individual over to the government, as well as testimony, is mandatory ( Isserles to Shulhan Arukh, Hoshen Mishpat 388.11). Testimony in criminal cases is every witness' obligation ( Lev. 5:1; B.K. 55b), while in civil cases a witness may wait until summoned ( Shulhan Arukh, Ch.M. 28.1). A witness must possess personal knowledge of the events ( Isserles to Shulhan Arukh, Ch.M. 19, 28.1).

In our instance, it seems that we are not dealing with a government demand for testimony -- as that would certainly have to be met -- but with a request to volunteer testimony. The decision then rests in the hands of the individual involved.

He may wish to be guided by the principles surrounding family witnesses in a purely Jewish court. Members of the immediate family are not eligible to act as witnesses and are disqualified. The tradition interpreted the statement of Deuteronomy 24:16 that parents should not be put to death for their children or children for their parents as a prohibition against parents testifying against children or children against parents ( San. 27b; Sifrei Deut.280). The Mishna expanded this list of disqualified relatives considerably so that it included father, brother, uncle, brother-in-law, stepfather, father-in-law, their sons, and sons-in- law ( San. 3.4). Later the rule was extended still further to include nephews and first cousins ( Yad, Hil. Edut 12.3; Shulhan Arukh, Hoshen Mishpat 33.2).

A husband was disqualified in cases involving his wife ( Yad, Hil. Edut 13.6; Shulhan Arukh, Hoshen Mishpat 33.3). Testimony from the individuals listed above for or against the accused was

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