Crime and Punishment in Jewish Law: Essays and Responsa

By Walter Jacob; Moshe Zemer | Go to book overview

ated with them but not with our problem ( Jacob ben Judah Weil Responsa; Meir of Rothenburg Responsa; Isaac ben Sheshet Responsa #235; Moses Isserles Responsa and others).

Although there is nothing like a court-appointed attorney in the traditional system of Jewish law, nevertheless, the tradition may provide some guidance for Jewish attorneys in the United State s and in the State of Israel in which the courts function differently. In these systems, an accused individual engages an attorney or has an attorney appointed. What is the duty of a Jewish attorney under those circumstances?

In order to answer this question, we must ask ourselves about the purpose of a trial. Our concern is justice and that was expressed by the Bible, which demanded close cross examination of the witnesses (Deut 13.15), as the accused was perceived innocent until proven guilty. The accused must be present during the examination of each of the witnesses who are testifying against her or him ( Yad Hil. Edut4.1). Furthermore, the defendant must be personally warned by those who saw the crime or by someone else (San 30a; Git 33b; Kid 26b and Codes). The examination must concentrate on precise facts and not wander afield (San 32b; Yad Hil. Edut18.2; 22:1 ff; Shulhan Arukh Hoshen Mishpat 15.3; Responsa Rivash #266).

There are strict rules against self-incrimination and no evidence of that kind is permissible (Ex 23.1; San 9b; Yeb 25; San 6.2; 18.6 and commentaries). The defendant may plead on her or his own behalf in front of the court before the court begins its deliberations (M San 5.4), but is not permitted to say anything which might prejudice the court against him or her (San 9.4). If the defendant is not capable of speaking for himself, then a judge may do so for him (San 29a). If the matter involves a death sentence, then the court remains in session until the individual has been executed so that if any new evidence appears, the execution may be halted (M San 6.1; San 43a and Yad Hil. San13.195).

This is merely a sample of judicial safeguards against injustice. It demonstrates the great care given to the defense of the accused and the efforts made on his behalf by the ancient system of courts. Lawyers or other representatives have not been involved, but the spirit of the law demands that we seek justice. We, in many modern lands, do so through an adversarial procedure.

The spirit of traditional legislation would indicate that lawyers in our system must participate in this effort to seek justice. This

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