Practice and Procedure
Practice and Procedure
PRACTICE AND PROCEDURE
The courts of three (judges) exercising jurisdiction in civil matters (see bet *din) held their sessions during the day, but – following Jethro's advice to Moses that judges should be available "at all times" (Ex. 18:22) – they would continue sitting at night to complete any proceedings commenced during the day (Sanh. 4:1). The session started early in the morning, with the judges robing themselves – they had special robes "wrapped around them," so that they would not look around too much (Sma, Ḥm 5 n. 16) – and usually continued for six hours until mealtime (Shab. 10a). While originally the session was not interrupted even for prayers, the law was later revised so that in this case it may be interrupted (Ḥm 5:4). No court was held on the Sabbath or holidays, lest any writing was done. On the eves of the Sabbath or holidays the courts would sit only in exceptionally urgent cases (Rema, Ḥm 5:2), but a party summoned was not punished for failing to appear on such a day (Ḥm 5:2). The court may sit on the intermediate days of a festival (Ḥol ha-Mo'ed, MK 14b).
Any person, male or female (Sif. Deut. 190), may sue and be sued, except minors, deaf-mutes, and lunatics (see Legal capacity). Actions brought by or against guardians on behalf of such incapacitated persons may be heard by the court, but any judgment rendered is binding only if in their favor (Git. 52a). Non-Jews who sue or are sued in a Jewish court may demand that their own non-Jewish law be applied to them (Yad, Melakhim 10:12); a Jew litigating with a non-Jew was originally entitled to claim any benefit of non-Jewish law, but this discrimination was later abolished (cf. Beit ha-Beḥirah thereto).
The rule is that parties must litigate in person and may not be represented; and even when and where representation is allowed, the parties are required to attend in person so as to enable the court to form a direct opinion of them (Sma, Ḥm 13 n. 12, 17 n. 14). An exception was made in favor of women defendants: if such women were accustomed to stay at home and not to be seen in public they were allowed to make their statements to a scribe of the court in their own homes (Tos. to Shevu. 30a). When suing for his own usufruct in his wife's property, a husband may also sue for the principal without special authorization, but not otherwise (Git. 48b; Ḥm 122:8).
Joint claimants may sue jointly or separately (Ket. 94a; Ḥm 77:9, 122:9), but in an action by one of them, the others will normally be included by order of the court. In cases of joint liabilities each defendant can be sued only for his share of the debt, unless he expressly or by implication guaranteed the whole debt (Ḥm 77:1); such a guarantee is implied in the debts of partners, joint contractors, and joint tort-feasors (ibid.).
The plaintiff "follows the defendant," i.e., the claim has to be lodged in the court of the place where the defendant resides (Rema, Ḥm 14:1); but if the plaintiff finds the defendant at a place where there is a court in session, he may sue him there and then (Resp. Maharik no. 14). The ancient rule that a party had the right to insist on trial by the Great Court at Jerusalem (Yad, Sanh. 6:7), though obsolete (ibid. 9), has been interpreted in many countries as enabling the plaintiff to compel the defendant to stand trial outside his place of residence in a court of higher repute or authority (Sanh. 31b; Tur Ḥm 14; Ḥm 14:1 and Rema thereto). The debtor's property may be attached by order of the court sitting at the place where the property is situated (Rema, Ḥm 73:10).
On the plaintiff 's application a summons is issued to the defendant to appear in court on a day named in the summons (mk 16a; Ḥm 11:1). A plaintiff need not disclose particulars of his claim before the defendant stands in court to answer the summons (bb 31a), and, if he does, he is not bound by any such summons unless he repeats them in court (Ḥm 80:1). This rule was devised in order that the defendant should not have time, before coming into court, to fabricate a defense (Rashbam, bb 31a); but later jurists held this purpose to be outweighed by the more desirable opportunity of an out-of-court settlement if the claim was disclosed in advance (Siftei Kohen, Ḥm 11, n.1).
The issue of a summons requires an order of the full court (Sanh. 8a), but one judge may make the order if the others are present in court. The summons is delivered by the officer of the court, either orally or by a written notice endorsed by the court (Ḥm 11:6). It must specify not only the exact time the defendant is required to appear in court, but also the name of the plaintiff suing him (Nov. Ritba thereto). It may specify alternative dates of hearing (mk 16a), so that if the defendant fails to appear at one date, he must appear at the next specified date (Rashi thereto). Originally, such alternative summonses were issued for the next following Monday, Thursday, and Monday (Yad. Sanh. 25:8), these being the fixed court days in talmudic times (Ket. 3a). If not drawn up as alternative summonses, they could be issued subsequently one after the other in case of nonappearance (Rashi, bk 113a).
The court has discretion on whether or not to issue a summons; it may refuse to summon scholars of great eminence (Kid. 70a), practicing rabbis, and women who live in seclusion (Ḥm 124). Each summons contained a warning that, failing his appearance in court on the date (or one of the dates) specified, the defendant was liable to be declared under a ban (see Rashba, bk 113a). A defendant who had to go on a journey or was otherwise prevented from attending court had to send an apology and request an adjournment (Ḥm 11:1 and Rema thereto). Failing both appearance and apology, the court would issue a bill of attainder (petiḥah) to be served on the defaulter, and a ban would be imposed on him, unless he appeared in court within one week, paid the expenses of the petiḥah, and produced it to be torn up (bk 112b–113a). A less rigorous mode of enforcing court summonses was the attachment of the defaulter's property (Resp. Rosh 73:1, 97:4).
It is forbidden to adjudicate the plaintiff 's case in the absence of the defendant (though duly summoned) except where the plaintiff 's claim is prima facie valid, e.g., where it is based on a bill signed by the defendant and confirmed by witnesses (bk 112b; Tur Ḥm 106 and Beit Yosef thereto), or where the defendant is abroad more than 30 days' journey away (Yad, Malveh 13:1; Ḥm 106). The reason for this deviation from the general rule that there shall be no adjudication unless both parties stand before the court (cf. Deut. 19:17), is said by Maimonides to be "that not everybody should take the money of other people and then go and settle abroad, with the result that borrowers will find all doors closed to them" (Yad, Malveh 13:1). Judgments in civil cases may always be given in the absence of the parties (Ḥm 18:6).
Hearing out "high and low alike," and fearing no man (Deut. 1:17) was interpreted as prohibiting any preference of major over minor cases (Sash. 8a; Yad, Sanh. 20:10): the case that came in first must be heard first, whatever its relative importance (Rashi, Sanh. 8a; Ḥm 15:1). There are several exceptions to this rule: the case of a scholar is given preference, so that he should not be kept too long from his studies (Ned. 62a); orphans and widows are given preference even over scholars, for it is by judging them that justice is done (Isa. 1:17); and cases in which one of the parties is a woman are advanced so as not to keep her waiting in court (Yev. 100a).
The court will not entertain a claim for anything of less than minimal value (bm 55a; Yad, Sanh. 20:11). Opinions were divided on whether the court, once seized of a claim for shaveh perutah, could proceed to deal with other (ideal and non-valuable) matters between the same parties; the leading view is that it could (bm 55b; Yad, loc. cit.; Ḥm 6:1).
When the parties stand before the court, they must first be advised to settle their dispute by a friendly *compromise (Sanh. 6b), which is the "judgment of peace" alluded to by the prophet (Zech. 8:16). Failing such compromise, the court will ask them whether they insist on adjudication according to law, or whether they would not rather empower the court to adjudicate between them by way of fair compromise (Yad, Sanh. 22:4; Ḥm 12:2); and courts were admonished to do everything in their power to dissuade parties from insisting on adjudication according to law (Ḥm 12:20). However, so long as a compromise had not actually been implemented by *kinyan or by performance, the parties might go back on their agreement and resort to law (Ḥm 12:7, 19).
The parties are required to stand up before the court (cf. Deut. 19:17), and so are the witnesses (Shev. 30a), and they may not sit down except with the court's permission (Yad, Sanhedrin 21:3; Ḥm 17:1). Maimonides comments sadly upon the fact that the post-talmudic courts always allow parties and witnesses to be seated – there being no longer sufficient strength in us to conduct ourselves according to the law (loc. cit. 21:5; Ḥm 17:3). Permission to be seated may not be given to one party unless it is also given to the other (Tosef., Sanh. 6:2; tj, Sanh. 3:10, 21c). Even where a scholar is permitted to be seated out of respect for him, his opponent must be given the same permission, and it is up to him whether he avails himself of it or not (Shev. 30b; Yad, Sanh. 21:4; Ḥm 17:2).
There is no rule requiring parties (or attorneys) to be dressed in any particular manner; but where one party is more richly dressed than the other, he will be ordered to dress in the same manner as the other before being allowed to address the court (Shev. 31a). This rule has been said to be now obsolete, because differences in dress are no longer so ostentatious (Siftei Kohen, Ḥm 17 n. 2); others have held that instead of ordering the party to change his dress, the court should rather assure the other party that his adversary's showy appearance makes no impression on it (Maharshal, quoted in Baḥ., Ḥm 17:1 and in Be'er ha-Golah, Ḥm 17, n. 4).
Equality of Parties
The injunction: "Judge your neighbor fairly" (Lev. 19:15) was interpreted as prescribing equal treatment by the court for all parties before it (Shev. 30a; Yad, Sanh. 21:1; Ḥm 17:1). In particular, the parties must all be given the same opportunity and the same time of audience (ibid.); no party may be heard in the absence of the other (Shevu. 31a; Sanh. 7b; Yad, loc. cit. 21:7; Ḥm 17:5). Where one party desires to be represented or to be accompanied by friends, relatives, or partners, the other party may be so represented or accompanied too, and will be heard to oppose such representation or escort through lack of equal facilities (Ḥm 17:4 and Pitḥei Teshuvah, Ḥm 17 n. 7). Where there are several plaintiffs and one defendant (or vice versa), they will be asked to choose one of them to argue for all, so as to keep the proportions even (Sma, Ḥm 17 n. 8).
The injunction not to favor the poor or to show deference to the rich (Lev. 19:15; cf. Ex. 23:3) was elaborated as follows:
No judge should have compassion for the poor and say, this man is destitute and his adversary is rich – why should he not support him? I will give judgment for the poor man and thus cause him to be honorably provided for; nor should a judge favor the rich: when there are before him a wealthy notable and a poor ignorant man, he should not greet the notable and show him any respect, lest the other may be embarrassed; nor should he say to himself, how can I decide against him and cause him disgrace? I will rather send him away now and tell him in private later that he ought to satisfy the other party – but he must give true judgment forthwith. And when there are before him two men, one good and one evil, he may not say, the one is a criminal and probably lies, and the other is virtuous and will stick to the truth – but he must regard both as if they were potential evildoers who might lie in order to strengthen their own case, and he must judge them according to his best conscience; and, having so judged them, he should then regard them both as perfectly in order (Ḥm 17:10).
The rule is that the parties must plead for themselves (see *Attorney), orally, but if both so agree, they may be allowed to put their arguments into writing, either by dictating them to the scribe of the court or by filing written briefs (Rema, Ḥm 13:3); in the latter case, they cannot be allowed to go back on anything they have written (ibid.), and it appears that the courts have resorted to written pleading so as to prevent parties from changing their positions every now and then (cf. Rema, Ḥm 80, n. 2). The costs of all such written records are borne equally by both parties (bb 10:4; 168a).
The court may not put any argument in a party's mouth or teach him how to argue his case (Avot 1:8; Yad, Sanh. 21:10; Ḥm 17:8), nor may the court express an opinion presupposing a hypothetical argument ("if A would plead this way, judgment might be given for him"; Rema, Ḥm 17:5). On the other hand, the court is admonished to open the mouth of the dumb for him (Prov. 31:8), i.e., to help a litigant who is intellectually or emotionally unable to express himself to formulate his argument (Yad, Sanh. 21:11; Ḥm 17:9). This rule applies especially to orphans and imbeciles (cf. Baḥ, Ḥm 17, n. 12).
The plaintiff pleads his case first (bk 46b; Ḥm 24), but he may be allowed by the court to postpone his pleading in whole or in part if he so desires (Rema, Ḥm 24). There is a curious exception to the rule: if by hearing the plaintiff first, the property of the defendant may depreciate (e.g., by rumors in the market that the title is disputed), the defendant is heard first (Ḥm 24 and Siftei Kohen thereto, n. 1). When the plaintiff has stated his case, the defendant is bound to reply forthwith, but the court may, in a suitable case, give him time to think and prepare his defense (Rema, Ḥm 16:2). For the various pleadings open to litigants and their respective effects, see *Pleas.
Where a case cannot be disposed of on the pleadings and has to be proved by *evidence, the parties must be ready with their witnesses and documents on the day of the pleading, but the court may allow them up to 30 days' grace to produce their witnesses or documents (Sanh. 3:8; bk 112b; Ḥm 16:1). Opinions were divided on what should happen if they failed to do so within this time limit (Sanh. 3:8), and the law was eventually settled to the effect that while the court would not extend the time limit (except where the witnesses are known to reside at a distance of more than 30 days' journey; Ḥm 16:1), any judgment given on the pleadings was subject to review, and could be annulled, if and when warranted by any further evidence being adduced (Ḥm 20:1). Where a party had declared in court that there were no witnesses or documents available to prove his case, he would not afterward be allowed to adduce such evidence, the suspicion being that it would be fabricated (Yad, Sanh. 7:7–8; Ḥm 20:1); but where a party declared that there were witnesses or documents in existence but he could not trace them, the court would make a public announcement threatening a ḥerem on any person who withheld evidence (Ḥm 16:3); such an announcement would even be initiated by the court where evidence was lacking to prove claims or defenses by representatives of estates (Ḥm 71:8). Before testifying, witnesses were warned by the court of the consequences of perjury and the moral turpitude this involved (Yad, Edut 17:2; Ḥm 28:7).
For the burden of adducing evidence, and presumptions in lieu of evidence, see *Evidence.
Having heard the parties and their witnesses, the judges confer with each other. According to ancient Jerusalem custom, the conference is conducted in private (Yad, Sanhedrin 22:9; Ḥm 18:1); but while the parties always had to be excluded, primarily because they ought not to know how each judge voted (Maim. Comm. to Mishnah, Sanh. 3:7), it appears that some courts allowed the general public to be present while they conferred (Baḥ., Ḥm 18:1); and there is a talmudic tradition that the judges' students were allowed not only to be present but also to participate in the discussions (Sanh. 33b, and Rashi thereto). Witnesses who testified in the case could express their opinion on the merits of the case while giving testimony, but could not be heard during the judges' conference, because "no witness is made a judge" (Yad, Edut 5:8).
The conference starts with the oldest (or presiding) judge stating his opinion (Sanh. 4:2, Yad, Sanhedrin 11:6); but the view was expressed that, as in criminal cases, it should rather be the youngest member of the court who states his opinion first, the same reasons applying in civil cases as well (Rema, Ḥm 18:1; see also below). Any judge may, in the course of deliberations, change any opinion he previously expressed (Sanh. 4:1). If a judge cannot make up his mind, he must say so, and need not apologize or give reasons for saying so (Yad, Sanhedrin 8:3). Two more judges will then be added to the court (Sanh. 3:6), as the judge unable to form an opinion is regarded as being absent and the remaining two judges, even if of one mind, are not regarded as a court (Rashi, Sanh. 29a). The augmented court (of five) will start deliberations anew, but need not hear the case once more (Ḥm 18:1).
At the close of the deliberations, the parties are called back into court and asked to stand up (Shevu. 30b; Yad, Sanh. 21:3; Ḥm 17:1); the presiding judge announces the decision, without disclosing whether or not the judgment is unanimous, or how each judge voted. If the judgment is unanimous, so much the better; if not, the majority prevails (Sanh. 3:6, Sanh. 3b; et al.). If (owing to the judges being unable to form an opinion) the court has been increased time and again up to the maximum of 71 members and is still almost equally divided, judgment will be given for the defendant as the plaintiff has not established his case to the satisfaction of a clear majority (Yad, loc. cit. 8:2; Ḥm 18:2).
Any party may ask the court for a record of the judgment in writing (Sanh. 30a; Yad, loc. cit. 22:8, Ḥm 19:2) and for a written statement of the reasons behind it (bm 69b and Tos. thereto; Sanh. 31b; Tur Ḥm 14 and Beit Yosef thereto), if only for the purposes of appeal to the Great Court (Yad, Sanhedrin 6:6). The written judgment (and the reasons for it) must be signed by all the judges, including the dissenter (R. Johanan in tj, Sanh. 3:1, 21 Ḥm d). While judgment is given on the day the case was heard (Sanh. 4:1; Maim. Comm. to Mishnah, Avot. 5:8; Ḥm 17:11), and any delay of justice is regarded as a violation of "Ye shall do no unrighteousness in judgment" (Lev. 19:15), the written record of the judgment and the reasons for it may be given whenever a party applies for it, without any time limit (Rema, Ḥm 14:4). Where the judgment has not been put into writing, the fitness of the judges to say what judgment they gave ceases when the parties no longer stand before them (Kid. 74a; Ḥm 23:1), i.e., when they are no longer associated with the case (Tosef., bm 1:12). This rule apparently caused great hardship and was later restricted, first to discretionary judgments given without pleadings and without evidence, and then to judgments given by a single judge (Ḥm 23:1; Resp. Rosh 6:15, 56:4; Mordekhai Kid. 541), and was thus virtually abolished.
The judgment may not exceed the amount of the claim (RemaḤm 17:12); but where the court is satisfied that the plaintiff was genuinely ignorant of the real extent of his rights, it may impose fines and other sanctions on the defendant to compel him to satisfy the plaintiff even beyond his claim (Sma, Ḥm 17:26; BaḥḤm 17).
For the effect of judgments inter partes and inter alios, see *Ma'aseh.
A judgment is always subject to revision, normally by the court that made it in the first place, if new evidence has come to light disproving the facts which the judgment was based on, provided the party seeking to adduce such new evidence is not debarred from so doing (see above; Sanh. 3:8; Yad, Sanhedrin 7:6; Ḥm 20, 1). Every judgment is also subject to revision for errors of law. Originally the rule appears to have been general and to have applied in all civil cases, whatever the quality of the error (Sanh. 4:1); later it was confined to erroneous judgments of nonprofessional and non-expert judges (Bek. 4:4); finally, the rule was confined to errors of mishnaic (i.e., clear and undisputed) law, as distinguished from "errors of discretion" (Sanh. 6a, 33a; Ket. 84b, 100a). While "discretion" was originally understood in its wide literal sense (cf. Sanh. 29b; tj, Sanh. 1:1, 18a), it was eventually confined to matters on which there were different views in the Talmud and the halakhah had not been decided; whatever view the judge followed, his judgment would not (for that reason alone) be subject to revision. It might otherwise be where the court followed one opinion in ignorance or disregard of the fact that another opinion had been accepted and put into practice "throughout the world" (Yad, Sanh. 6:2; Ḥm 25:2). The revisable error could (in certain well-defined circumstances) be of great moment to the judge personally, as he might find himself saddled with the obligation to pay out of his own pocket any irrecoverable damage caused by his error (Yad, loc. cit. 6:3; Ḥm 25:3).
Apart from revisable error, unwarranted assumption of judicial authority (whether it resulted in error or not) is a cause for having the judgment set aside, but it stands until set aside (Yad, loc. cit. 6:4; Ḥm 25:4). The finding of unwarranted assumption of judicial authority is tantamount to a finding of a trespass, and counts in damages (ibid.). In many countries, the revision of judgments of errors of law was reserved to courts of appeal, i.e., mostly courts presided over by the leading scholars of the community.
While the procedure in Israel civil courts is mainly based on English law, the procedure in the rabbinical courts is governed by the Takkanot ha-Diyyun which were enacted by the chief rabbinate of Israel in 1960 (revising earlier takkanot of 1943). They purport to reflect talmudic and post-talmudic law, but actually deviate from it and follow modern procedural concepts in many important particulars; for example, the requirement of written statements of claim, representation by attorneys, cross-examination of parties (in addition to witnesses), reduction of judgments into writing before delivery, and discretion in the matter of costs.
For the composition of courts competent to adjudicate in criminal cases, see Bet *din. The composition of the court and certain matters of procedure differ in capital and non-capital cases. While the following account deals with capital cases (unless otherwise indicated), practice and procedure were modeled on them as far as possible (cf. Maim., Yad, Sanh. 16:1–4).
In criminal cases, the court sits only during the day and adjourns at sunset (Sanh. 4:1; Yad, Sanh. 11:1). If the proceedings have been concluded during the day, a judgment of acquittal will be announced forthwith, but a judgment of conviction and sentence may not be announced until the following day (Sanh., loc. cit.; Yad, loc. cit.), since there is a chance that the judges may change their minds during the night (Rashi, Sanh. 32a). No criminal sessions may therefore be held on the eves of the Sabbath and holidays (Sanh. 4:1; Yad, Sanhedrin 11:2); and either because a trial is regarded as potentially a first step in an execution, which may not take place on a Sabbath (tj, Sanh. 4:7, 22b), or because the trial involves writing prohibited on the Sabbath (Tos. to Beẓeh 36b and Sanh. 35a), no criminal trials may be held on the Sabbath or holidays.
In the Temple precincts (see Bet *din), criminal sessions started after the morning sacrifices and ended with the late afternoon sacrifice (Sanh. 88b); otherwise the time of court sessions is the same in criminal as in civil cases. The following is a mishnaic account of the manner in which courts of 23 held criminal trials:
The court sat in the form of a half-circle, so that the judges could all see one another. The two court scribes stood before them, one at the right and one at the left, and recorded the words of the judges – one the words of those in favor of conviction, and the other the words of those in favor of acquittal. Three rows of learned disciples sat before them, each knowing his place; when the seat of a judge became vacant, his place would be filled with the first sitting in the first row (Sanh. 4:3–4 – According to Maim., Yad, Sanhedrin 1:9; but Rashi (to Mishnah, Sanh. 36b) states that the two scribes write the words both of those in favor and those against, so that if one scribe errs the other can correct him).
The public and the disciples would be already in court when the judges entered – the presiding judge last – and everyone present would rise and remain standing until the presiding judge gave them leave to sit down (Tosef., Sanh. 7:8).
Duplicity of Trials
Only one capital case may be tried on any one day in any one court (Sanh. 6:4; Tosef., Sanh. 7:2). An exception was made where there were several participants in one crime, provided they were all liable to the same penalty (Sanh. 46a). However, where participants in one crime were liable to execution by different methods, as, e.g., in *adultery where the male adulterer was liable to strangulation and the female adulteress, if a priest's daughter, to burning, they had to be tried separately on different days (Yad, Sanh. 14:10).
The arrest and detention of persons awaiting trial is reported in the Bible (Lev. 24:12; Num. 15:34), and the appointment of judges presupposed the concomitant appointment of police officers (shoterim: Deut. 16:18). Maimonides describes shoterim as officers equipped with sticks and whips who would patrol streets and marketplaces, and bring any criminals they caught before the court; these officers would also be dispatched by the court to arrest any person against whom a complaint had been brought ("they act upon the judges' orders in every matter": Yad, Sanhedrin 1:1). In capital cases the accused would be detained pending trial (Sif. Num. 114; Yad, Sanhedrin 11:2), if he was caught in flagranti delicto or there was at least some primafacie evidence against him (tj, Sanh. 7:8). However, the fact that the available evidence was as yet insufficient to put a man on trial was no reason not to detain him until sufficient evidence was available (Sanh. 81b). Or, where death had not yet ensued but the victim was dangerously wounded, the assailant would be detained until the degree of his offense could be determined (Sanh. 78b; Ket. 33b). The accused would always be held in custody (Yad, Sanh. 12:3). Opinions were divided on whether an arrest could be made on the Sabbath.
The release of an accused person on bail pending trial is already mentioned in early sources (Mekh. Nezikin 6). The rule evolved that in capital cases no bail should be allowed (ibid.; and Resp. Ribash no. 236, quoted in Beit Yosef, Ḥm 388, n. 5), from which it may be inferred that in non-capital cases bail would be granted as a matter of course.
No criminal proceeding may be conducted in the absence of the accused (Sanh. 79b; Yad, Roẓe'ah 4:7, Sanh. 14:7).
There is good authority for the proposition that in cases of *homicide the *blood-avenger acted as prosecutor (Nov. Ran; Sanh. 45a). Where no blood-avenger was forthcoming, the court would appoint one for this purpose (Sanh. 45b). By analogy, it may be assumed that in cases other than homicide the victim of the offense acted as complainant and prosecutor. In offenses of a public nature, the court initiated the proceedings and dispensed with prosecutors. Such proceedings were normally prompted by witnesses who came forward and notified the court that an offense had been committed; if they could identify and name the accused and satisfy the court that a prima facie case could be made out against him, the court would take action (Yad, Sanh. 12:1).
In criminal matters, any person who wished to plead in favor of the accused was allowed and even encouraged to do so (Sanh. 4:1). If a disciple of the judges wished to plead for the accused, he was raised to the bench and allowed to stay there until the end of the day (Sanh. 5:4), clearly a potent encouragement. There are records in post-talmudic times of defense attorneys having been appointed by the court (e.g., Ribash Resp. no. 235).
Unlike civil trials, criminal trials started with the interrogation of the witnesses. Before this, each witness had to be warned separately by the court in the following terms:
If you are going to tell us anything which you only believe or opine, or anything you may have heard from any other person, however trustworthy he may seem to you, or anything you know from rumors – or if you are not aware that this court is going to examine you by a probing cross-examination – you had better know that a criminal trial is not like a civil trial; in a civil case, a false witness pays money to the man he has wronged and will then be discharged; but in a criminal case, his blood and the blood of his children will be on him until the end of the world. Man was created single in this world, to show you that whoever causes one single soul to perish from this world is regarded as if he had caused the whole world to perish; and he who keeps one single soul alive in this world is regarded as having kept the whole world alive. Are not all men created in the form of Adam, the first man, and still the form of each man is different from that of anybody else? Therefore can each and everybody say, it is for me that the world was created. And do not say, why should we bring this calamity upon ourselves? for it is written, whoever is able to testify from what he has seen or known, and does not do so, will be punished [Lev. 5:1]; nor may you say, it is more convenient for us to incur punishment for our silence, than to bring upon ourselves the blood of that criminal; for it is written, there is rejoicing when the wicked perish (Sanh. 4:5; Yad, Sanh. 12:3).
The evidence of at least two witnesses (Deut. 17:6) is required to prove not only that the accused was seen to have committed the act constituting the offense (Ket. 26b; Sanh. 30a; Git. 33b), but also that, immediately before committing it, he had been warned of its unlawfulness and of the exact penalty he would incur (Sanh. 12:2). No circumstantial evidence is ever sufficient to support a conviction (Sanh. 37b; Tosef., Sanh. 8:3; see *Evidence; Penal *law). The accused must be present during the examination of the witnesses, but opinions are divided on whether he must stand up or may be seated. The judges, are of course, seated when hearing evidence (Ḥm 28:6), while the witnesses stand (Shevu. 30a; Ḥm 28:5).
For the methods of examination of witness, see *Witness.
It is only if and when the evidence of all the witnesses heard is first found consistent, i.e., if it is established to the satisfaction of the court that the witnesses do not contradict themselves or each other in any material particular, that the deliberations (in the technical sense) start (Sanh. 5:4; Yad, Sanh. 12:3). If the evidence is found to be inconsistent, the accused is acquitted and discharged there and then. The rule is that the youngest member of the court has the first say in the deliberations (Sanh. 4:2; Yad, Sanh. 11:6), in case the junior members be unduly impressed and influenced by what their elders have to say (Yad, Sanh. 10:6; Rashi to Ex. 23:2 and to Sanh. 36a); but this rule yields to another that the deliberations must always start with a view propounded in favor of the accused (Sanh. 4:1, 5:4; Yad, Sanh. 11:1, 12:3). Talmudic scholars wondered how anything could be said in favor of the accused once the evidence against him had been found to be consistent, and they solved the problem by suggesting that "opening in favor of the accused" really meant asking the accused whether he could adduce any evidence in rebuttal (Sanh. 32b; tj, Sanh. 4:1), or reassuring the accused that if he was innocent he had nothing to fear from the evidence adduced against him (ibid.; Yad, Sanh. 10:7). Deliberations were thus held in the presence of the accused, and it would appear that at this stage he was given the opportunity of saying anything he wished in his defense: "If he says, I wish to plead in favor of myself, he is heard, provided there is some substance in his words" (Sanh. 5:4). According to Maimonides, he is even raised to the bench for this purpose (Yad, Sanh. 10:8). However, he is not allowed to say anything to his detriment, and as soon as he opens his mouth to admit his guilt or otherwise prejudice himself, he is silenced and reprimanded by the court (Tosef., Sanh. 9:4). Where the accused is not capable of speaking for himself, the court or a judge will do so for him (Sanh. 29a).
It appears that the credibility and weight of the evidence, even though it was found consistent (and hence admissible), was an open issue for the deliberation of the judges, as was the legal question whether the act committed by the accused constituted a punishable offense (Yad, Sanh. 10:9). Having once expressed his view in favor of an acquittal, a judge is not allowed to change his view during the deliberations (Sanh. 4:1, 5:5, 34a; Yad, Sanh. 10:2); but having expressed his opinion condemning the accused, a judge may change his mind even during the deliberations (ibid.; Yad, Sanh. 11:1). Judges ought not to follow the opinion of other, greater judges, especially in criminal cases, but must decide solely according to their own knowledge and personal conviction (Tosef., Sanh. 3:8; Yad, Sanh. 10:1).
If, at the end of the day, a majority for an acquittal has been reached, the accused is acquitted forthwith; if no such majority has emerged, the case is adjourned to the next day (see above), the judges conferring, in groups of two, throughout the night, abstaining from too much food and from all alcohol. The next morning, back in court, the scribes checked the judges' views with those they had expressed the day before, so that the number of those arguing in favor of an acquittal could meanwhile only have increased (Sanh. 5:5, Yad, Sanh. 12:3). If a clear majority for conviction has eventually been reached, judgment will be pronounced accordingly; but a "clear majority" presupposes some minority and accordingly, where the whole court is unanimous that the accused be convicted, proceedings are adjourned and deliberations continued until at least one judge changes his view and votes for an acquittal (Sanh. 17a; Yad, Sanh. 9:1). It is believed that this rule applied only to the Great Sanhedrin of 71 (Maim., Yad, ibid., speaks of the "Sanhedrin" as distinguished from the "Small Sanhedrin" in the immediately following paragraph), while in courts of 23 and of three unanimity was as good as, or even better than, a majority.
The sentence pronounces the accused guilty and specifies the punishment to be inflicted on him; it is not reasoned. Unlike in civil cases (see above), the accused knows which of the judges were in the majority and which in the minority, and what were the reasons which prompted each judge in his voting, since he had been present at their deliberations.
Once a capital sentence is pronounced, the accused is in law deemed to be dead (Sanh. 71b), and a person killing him would not be guilty of homicide (Yad, Mamrim 7, 9), nor would a person wounding him be guilty of any offense or liable for damages (Tosef., bk 9:15). The theory was propounded that it is this legal fiction which enables the court and the executioners to execute capital sentences without incurring liability as murderers.
On the other hand, as long as the sentence has not been carried out, the judgment is subject to revision: on the way from the court to the place of execution, a herald announces that A son of B is going to be executed for having committed the offense C, and witness D and E have testified against him; whoever has anything to say in his defense should come forward to say it (Sanh. 6:1). The case is returned to court for a retrial not only if any such person is forthcoming but even if the accused himself wishes to plead again in his own defense – provided there is some substance in what he says (ibid.). In order to find out whether or not there is some substance in what the accused wishes to say, two men learned in the law are seconded to accompany him on his way to the place of execution (Yad, Sanh. 13:1), and if they are satisfied that there is some such substance, they will have him brought back into court even two and three times (ibid.). If, on retrial or redeliberation, the accused is acquitted, the sentence is deemed to be annulled ex tunc, as if it had never been passed.
Where the accused escapes after sentence and before execution and then is caught and brought before the court which had sentenced him, his trial is not reopened, but the sentence stands (Mak. 1:10). It might be different if he were brought before a court in Ereẓ Israel, and the court which had sentenced him had sat outside Ereẓ Israel (Yad, Sanh. 13:8). For the purpose of establishing that sentence had duly been pronounced against him, two witnesses must testify that in their presence sentence had been passed on this particular accused and they had also heard the evidence given against him by two named witnesses (Mak. 1:10; Yad, Sanh. 13:7). Before the sentence is finally executed, the accused is asked to confess in order that he may have a share in the world to come (Sanh. 6:2). If he does not know how to make confession, he is asked to repeat the words, "may my death expiate all my sins" (ibid.).
For the various modes of execution, see Capital *Punishment.
[Haim Hermann Cohn]
rules of procedure of the rabbinical courts of the state of israel
The promulgation of the Rules of Procedure for the Rabbinical Courts in Ereẓ Yisrael marked the first attempt in the history of halakhic literature to provide a modern compilation of the rules of procedure. The Council of the Chief Rabbinate published the Rules of Procedure, based largely on the Shulḥan Arukh and responsa literature, in 1943. The Rules have been revised several times over the years. As of 2006 the last revision was made in 1993, and all references in this article are to those Rules.
The Court's Intervention in Litigation
In this article, we present the primary findings of a comprehensive study of the rabbinical court's intervention in litigation in general, and in pleadings and the examination of witnesses in particular (Y. Sinai, Me'uravut Bet ha-Din be-Halikh ha-Diyyuni be-Mishpat ha-Ivri (Ramat-Gan, 2003)).
Sources of Jewish Law dealing with the intervention of judges in pleadings paint a complex picture, drawing upon several procedural systems that developed at different times and in different places. In this context, we find tension between the adversarial principle, "Do not play the part of an advocate" (M. Avot 1.8), and the inquisitorial principle – "Open thy mouth for the mute" (tj Sanh. 3:6).
In general, one may distinguish between two primary procedural approaches, which developed against different legal and historical backgrounds. While these approaches were clearly enunciated by medieval scholars in Spain and Ashkenaz, they were already hinted at in talmudic literature. One approach, emphasized primarily in the classical Spanish tradition, took an adversarial view, and tended to shy away from the court providing any assistance to a litigant's pleadings, whether factual or legal, in the course of the proceedings (see, e.g., Yad, Sanh. 21:10–11). This approach sees in the live, spontaneous conflict between the parties a means for uncovering the factual truth. The proceedings are conducted primarily by the parties themselves, who present their arguments before the court. Any uncontrolled intervention in that spontaneous dispute by third parties (whether the court or lawyers) may seriously impede the process of uncovering the truth. Nevertheless, this approach does permit the court to intervene in the proceedings in exceptional circumstances. We thus find the rule that the court may raise arguments for the benefit of an heir or a buyer (Git. 58b).
The second approach, emphasized in the Ashkenazi tradition, prefers an inquisitorial view. This approach recognizes numerous situations in which the court is required to assist in raising factual and legal arguments (see, e.g., Teshuvot u-Fesakim me'et Ḥakhmei Ashkenaz, sec. 99). However, even the supporters of this system did not adopt an extreme inquisitorial approach, and limited court intervention to some degree. Similar to the supporters of the first approach, their aim was that the truth be uncovered with the assistance of the court. The Ashkenazi scholars developed and perfected a comprehensive theory to distinguish between common and uncommon arguments, so that the court was allowed to take the initiative to raise only the more common arguments that might reasonably reflect the truth.
Talmudic and post-talmudic sources reveal a clear, fundamental distinction between factual and legal arguments. In general, the Sages were in favor of judges raising legal argumentation and safeguarding the rights of defendants in criminal cases, and of litigants in civil monetary cases (in the framework of arbitration). Raising arguments is part of a judge's role, in accordance with the duty to apply the law in the case before him. In light of Maimonides' statement at the beginning of Chapter 6 of Hilkhot To'en ve-Nit'an, we must distinguish between two stages of the proceedings. During the first stage, the parties raise their factual claims. The legal arguments are only addressed at the second stage, that of rendering judgment, and the court decides in accordance with the legal principles. The court's role is to draw the legal conclusions that flow from the litigants' factual pleadings. At the stage of rendering judgment, the court is required to raise legal arguments deriving from halakhah, even if a litigant was mistaken in this regard or failed to raise the arguments.
Under the rules of procedure of Jewish Law, witnesses are examined by the court and, in principle, litigants and their attorneys may not question the witnesses. On the subject of examining witnesses, see *Witness.
adherence to the rules of procedure
Many scholars have noted that, although the courts operate in accordance with established rules of procedure, the approach of the Sages and of judges is fundamentally informal. While the rules of procedure are intended to establish appropriate order in the normal course of the court's work, they are not sacrosanct, and breach of a rule will not result in any unnecessary loss of rights or any harm to a litigant that does not serve the interests of justice (N. Kirsch, "Le-Mahut ha-Proẓess ha-Ivri," in: Yavneh: 3 (1949), 128–36; A.H. Shaki, "Kavvei Yiḥud be-Sidrei ha-Din ha-Rabbanyyim u-ve-Gishat ha-Dayyanim le-Tti'un Formalisti: le-Or Pesikat Batei ha-Din ha-Rabbaniyyim be-Yisrael," in: Sefer Sanhedrai (Tel Aviv, 1972), 248; S. Darnes, "Ḥoser Formalizim be-Sidrei ha-Din be-Vatei ha-Din ha-Rabbaniyyim be-Yisrael," in: Dinei Yisrael, 10–11 (1981–83), 27).
In this regard, the Israeli Supreme Court stated (ca 561/77 Ḥevrat Ram Ltd. v. Bank Leumi Ltd., 32 (2) pd 639, 643, per Justice Elon):
The importance of the rules of procedure requires no emphasis, as they are the guarantor of legal stability and of the search for truth. Nevertheless, the commandment to do true justice may require that the court show leniency when one of the litigants errs in a matter of procedure, when it will not harm the opposing litigant…We may learn from the words of the Rabad of Posquières … one of the great halakhists of the 12th century, who stated in a certain matter in which a litigant erred in one of his pleadings: "We must not decide in accordance with his pleading but pronounce true judgment…and therefore it is up to the court, if it sees that he pleaded mistakenly or foolishly…not to follow it to its conclusion but to correct it" (Tamim De'im, 56).
In the following we will examine other subjects in the order that they appear in first part of this entry.
The Talmud states: "The day is for the beginning of the trial, the night is for the conclusion of the trial" (Sanh. 34b), and that is the rule established in the Shulḥan Arukh (Ḥm 5.2). This is taken to mean that the parties are not to be summoned to court at night. However, if the proceedings – i.e., the pleadings and taking of testimony – are concluded while it is still day, the trial may be concluded – i.e., the judgment may be read – at night. Various opinions have been expressed as to whether the judges must conclude their deliberations during the day, or whether they may continue them at night (Pitḥei Teshuvah on Sh. Ar., Ḥm 5.7). Opinions differ as to the validity of the decision of a court that breaches this rule (Hagahot ha-Rema, ad loc.). Nevertheless, the litigants may give their consent to conducting proceedings at night (Responsa of Rabbi Meir b. Baruch of Rottenburg (Cremona, 1557) 29).
Ending the court's session at noon is dictated by the prohibition of sitting in judgment without eating, because the judges cannot devote their undivided attention to the proceedings if they are hungry (Arukh ha-Shulḥan, Ḥm 5.11). If the judges choose to reconvene after the noon meal, the litigants must comply (Be'er Eliyahu al Bi'ur ha-Gra, Sh. Ar., Ḥm 5.7). When a judge is a public appointee, his work hours are set by agreement or by the customary rules (Resp. R. Joseph ibn Migash, 127).
In the State of Israel, the rabbinical courts are in recess for one month of the year (from the ninth of Av until the tenth of Elul), during which period only emergency cases are heard.
There is a fundamental tendency in Jewish Law opposing representation by lawyers. The court must hear the pleadings from the litigants themselves in order to obtain an impression from their appearance and their behavior as an aid in determining who is telling the truth. Despite the fundamental tendency to reject representation by counsel, the institution nevertheless found its way into Jewish Law by virtue of practical realities that overcame the theoretical objections (see in detail, Rackover, ha-Sheliḥut ve-ha-Harsha'ah ba-Mishpat ha-Ivri, Chap. 8). Granting a defendant the possibility of appointing an attorney to argue on his behalf derives from a custom that was roundly criticized by several poskim, but that garnered the support of others (Sema on Sh. Ar., Ḥm 17.14). In the modern period, the said custom ultimately crystallized into a rule included in the Rules of Procedure of the Rabbinical Courts of Israel permitting litigants to appoint representatives to appear before the court on their behalf. Nevertheless, the regulations do not entirely ignore the negative view of the majority of posekim in regard to representation. Thus, under rule 57, the appointment of a legal representative does not exempt the appointing party from personally appearing in court. Rule 60 (1) further establishes that, in general, the litigant shall initially plead on his own behalf, and only thereafter are his representatives permitted "to explain and reason their pleadings."
The court's authority to order a joinder of parties can be based upon the basic procedural principle of judicial economy: "it would not be proper to trouble the Court of Law so much for nothing" (BK 89b), namely, that the court should not be troubled without reason, and should be saved from unnecessary annoyance. It would therefore appear that, where there is a question before the court that is common to several parties, the joinder of those parties in a single action is within the competence of the court, and is even desirable under the procedural rules of Jewish Law, even if the parties do not all share an interest in every element of the case (Shochetman, Seder ha-Din, 58).
The basic rule is that the appropriate venue for litigation between parties residing in the same city is the court of that city (Sanh. 31b). Even if both parties are present in another city, one cannot compel the other to submit to the court of that city, but must file suit before the court of their permanent place of residence (Naḥmanides' Torah Commentary to Deut. 16:18). The ancient rule that a lender could demand that his case be heard before the Great Court in Jerusalem (Yad., Sanh. 6:6) was interpreted by the Shulḥan Arukh to mean that, in the case of a debt for which the plaintiff is the defendant's creditor, the rule that the case be heard in their own city applies only if it is acceptable to the plaintiff, who is at liberty to choose that the matter be brought before a higher court in another place (Ḥm 14:1). However, the plaintiff can demand that the defendant go to the Great Court only if he first brings evidence or testimony before the local court showing that there is substance to his suit. This is the law, and Rema adds in his gloss to the Shulḥan Arukh that the prevailing custom is that no litigant may demand that his case be heard by a court in another city, even if it be a greater court. This custom is based on the fear of abuse by dishonest plaintiffs who might file baseless suits against wealthy victims, in the expectation that the defendants would prefer to offer a settlement rather than travel to a distant city in order to present a defense (Resp. Maharik, no.21). Another reason given for the custom is to prevent disputes as to which court is greater (Resp. Maharshdam, Ḥm 7). If the litigants do not reside in the same city, the applicable rule is that "the plaintiff follows the defendant" (Rema, Ḥm 14:1).
Rule 7 of the Rules of Procedure of the Rabbinical Courts of Israel establishes that "the place of the defendant shall be deemed to refer to his permanent place of residence, permanent place of work, or primary place of business." Where there is no court in the defendant's city, the plaintiff must file suit in the court closest to the defendant's place of residence (Piskei Mordekhai le-Sanhedrin, Chap. 3, end of §709).
Although the general rule is that the plaintiff follows the defendant, if the defendant comes to the plaintiff 's place of residence, the plaintiff may require the defendant to submit to the jurisdiction of the local court, as this will not cause the defendant to incur added expense. If both litigants are present in another city, the plaintiff can require the defendant to submit to the jurisdiction of the local court in order to frustrate a suspicion of evasion by the defendant (Rema, ibid; Pitḥei Teshuvah, ibid., §2). Other exceptions to the rule are that a son sued by his father must appear in the court of his father's place of residence (Rema on Sh. Ar., yd 240:8), and that a student must appear in the court of his teacher's residence (Knesset ha-Gedolah le-Ḥoshen Mishpat 14; Hagahot ha-Tur, §8).
Some scholars are of the opinion that the demand that a litigant be present at the proceedings is the preferred rule, but that a case may be tried in absentia (Keẓot ha-Ḥoshen, Ḥm 13:1). On this basis, Rule 101 of the Rules of Procedure of the Rabbinical Courts of Israel establishes that if a litigant does not appear in court, "the court may decide to hear the suit, including hearing testimony and evidence, in the defendant's absence, and render judgment or adjourn the proceedings to a later date." Examples of various rules that granted courts in the Diaspora the authority to hear cases in the defendant's absence may be found in Assaf, Batei ha-Din ve-Sidreihem le-Aḥar Ḥatimat ha-Talmud, 36–37.
The halakhic sources do not refer to situations in which the two parties failed to appear at the trial, or in which the plaintiff did not appear, but these situations are contemplated in the Rules of Procedure of the Rabbinical Courts of Israel. Where both parties fail to appear, Rule 100 grants the court the power to adjourn to a later date, or to dismiss the case without prejudice. The court is not empowered to dismiss the case with prejudice and prevent reinstituting the suit, inasmuch as such a dismissal is possible only after hearing the pleadings and the witnesses (Resp. Maharam Schick, Ḥm no. 1). If the plaintiff fails to appear, Rule 102 states: "If the defendant appears and the plaintiff does not appear after having been duly summoned, the court will dismiss the case at the defendant's request, unless the court finds that, under the circumstances, the case should not be dismissed, in which case it shall adjourn the proceedings." Here, too, the court is not authorized to dismiss with prejudice and rule in favor of the defendant.
Some scholars are of the opinion that the laws presented in this regard were intended to address a reality that required the personal appearance of the various parties before the court in order to submit complaints. Thus, the rules established that certain persons be granted priority. However, in modern practice the court sets the dates for hearings only after the submission of written complaints, so that it would appear that there would be no affront to the dignity of scholars or women if their cases were not granted precedence (Shochetman, Seder ha-Din, 38).
The preference for compromise over judicial decision is rooted in the fact that the parties agree to a compromise, whereas in the latter the winning side welcomes the judicial decision and the loser is always left dissatisfied. In addition, there is a fear that if the judge is left to decide in accordance with Torah law, he may err as to the true intent of the Torah. As Rabbi Jacob ben Asher wrote: "The judges must do all in their power to distance themselves from having to decide in accordance with Torah law, as the minds have greatly diminished" (Tur Ḥm 12:6). Handing down judgment in accordance with a compromise removes this fear, as the judge is not required to seek the truth under the law of the Torah. Nevertheless, a judge is not at liberty to suggest an arbitrary compromise. Even the suggested compromise must reflect the law, and a mechanical compromise of fifty-fifty division is invalid (bb 132b and Rashi there). The halakhah informs us that, as long as the proceedings have not ended, the court may – and even must – suggest that the parties agree to a compromise (Sema on Sh. Ar., Ḥm, ad loc., §§6, 9).
The court's authority to settle the issue before it in accordance with a compromise was given statutory expression in Israeli law in 1992, in Sec. 79A of the Courts Law [Consolidated Version], 5744 – 1984. The court's obligation to suggest a compromise was emphasized by Judge Kister in a decision of the Tel Aviv District Court (ma (ta) 288/57 Blin v. Officers of Execution Office, 20 pm 60, 63, 79).
The reasons underlying the halakhah's opposition to written pleadings, and its preference for oral arguments, are that requiring written pleadings presents a burden for the parties, and that hearing oral arguments from the parties themselves may aid the court in ascertaining who is telling the truth, while written pleadings are usually prepared by lawyers who are professionally proficient (Resp. Ribash no. 98).
The need for a written complaint as a general requirement is an innovation of the Rules of Procedure of the Rabbinical Courts of Israel (chapter 3). Like the accepted rules of procedure in civil courts, the Rules establish a general requirement of a written complaint, even if the defendant does not request it.
We find a broad, original approach to the principle "open thy mouth for the mute," even where a party is represented by counsel, in an Israeli Supreme Court decision (ca 634/76 Estate of Gerltz v. Aharon, 33 (1) pd 253, 255–256, per Justice H. Cohn):
There are judges who are unwilling to make themselves "play the part of an advocate" but, consistent with my own approach that we not punish clients for the sins of their attorneys, and in order to do justice with the party standing before it, the court will uphold the maxim "open thy mouth for the mute," even in regard to a lawyer who does not know how to plead.
There is no express source in halakhah for the right of litigants to question one another, inasmuch as the examination of witnesses is carried out primarily by the court. Nevertheless, the Rules of Procedure of the Rabbinical Courts of Israel (rule 63 (1)) provide that, after the parties present their arguments, each side may examine the other in regard to its claims. These examinations must be aimed at aiding the court in uncovering the truth.
On developments in contemporary Israeli law in regard to warning witnesses and the abolition of oaths, see *Witness.
Testimony cannot be taken in the absence of the concerned party (Sh. Ar., Ḥm 28:15) because, when a witness speaks in the presence of the person about whom he is testifying, he is careful not to testify about things of which he is not certain (Sema on Sh. Ar, Ḥm, ibid., §48).
The court may call witnesses upon its own motion, even if they have not been summoned by the parties (Rule 93 of the Rules of the Rabbinical Courts of Israel).
Halakhic literature presents a variety of approaches, not necessarily contradictory, with regard to the manner in which a court should proceed when it believes that it is faced with a fraudulent claim. The early Palestinian view assumed that a judge must refrain from attempting to contend in the usual manner with a case that he feels will lead to an untrue result, and that he must either refuse to adjudicate or adopt the alternative means of compromise (TJ Sanh. 94.1; Y. Sinai, "Me'uravut Bet ha-Din be-Halikh ha-Diyyuni be-Mishpat ha-Ivri," pp. 286–93). This approach is consonant with the desire to distance the judge from fraudulent claims, as expressed in the baraita in Shevu'ot 30b. Some see this approach as consistent with the dominance of the concept of yir'at ha-hora'ah (reluctance to render decisions for fear of making a mistake in halakhah) in Palestine during the period of the Sages (Sinai, ibid., 293–98).
A later period saw the development of the activist Babylonian approach, expressed by R. Papa, which held that, if a judge senses that he is confronted with a fraudulent claim, then he should – and, it would seem, must – continue with the legal proceedings as usual, and contend with the fraud by means of a careful examination of the witnesses that will help him uncover the truth and correctly decide the law (tb Sanh. 32b). Here, too, one scholar has demonstrated that the conceptual roots of R. Papa's approach to fraudulent claims are grounded in the activist conduct of his predecessors (Sinai, ibid., 304–7).
These approaches became more sharply distinguished in the post-Talmudic period (Yuval Sinai, "Judicial Treatment of Fraudulent Claims (Din Merummeh): An Examination of Legal Traditions," in: Jewish Law Annual (see bibliography)). On the theoretical level, there is not necessarily any clear, fundamental dispute among medieval scholars. Most would appear to agree, that in cases of fraudulent claims, there are instances in which the judge carefully examines the witnesses, and there are other instances in which he refuses to adjudicate. However, in practice, the scholars differ as to the emphasis they give to each of the said approaches as well as to the tendency toward judicial activism or restraint.
The geonim and the Spanish rishonim developed the Babylonian activist approach, supporting an aggressive judicial approach toward fraud (Responsa Rambam, ed. Blau, 58; Responsa Rashba, vol. 2 no. 148). This may reflect the aggressive authoritarianism characteristic of these authorities, who enjoyed a broad measure of judicial autonomy enabling them to contend even with problematic cases of fraud without fear (Sinai, ibid.). As opposed to this, the traditional approach in medieval Ashkenaz and France tended toward judicial restraint, and saw refusal to adjudicate a fraudulent case as a practical, legitimate course of action (see Resp. Maharam mi-Rothenburg (ed. Prague), no. 319; Resp. Mahari Bruna no. 213). This approach may be related to yir'at ha-hora'ah as a dominant factor in these countries, as is also expressed in the desire of the scholars of Ashkenaz and France to avoid adjudicating monetary claims. The matter is also linked to the limited judicial autonomy in Ashkenaz, and to the fact that the appointing of arbitration tribunals was common, and took the place of a permanent court. It is only natural that an arbitrator who is not a professional judge, and who has been selected to decide a particular case, will refrain from addressing fraudulent claims (Sinai, ibid.). Rabbenu Asher disagreed with the idea of leaving the case in dispute, and of not deciding in cases of fraud. He deviated from the traditional Ashkenazi approach, and adopted an activist position much closer to, although not identical with, the Spanish approach (Resp. Rosh, rule 107.6).
The judge's duty to decide din emet le-amito ("the true law truthfully"; Shab. 10a) was interpreted by the Tosafot as follows: "'true' – this excludes a deceitful judgment… 'truthfully' – one may not distort the law" (Tosafot, bb 8b, s.v.din emet le-amito). On the basis of this interpretation, Justice Elon wrote in one of his decisions that "'True' (emet) – is the factual truth; 'truthfully (le-amito) – is the legal truth. The judge must adjudicate in accordance with both truths, and put them into effect one upon the other" (Cr. A. 115/82 Moadi v. State of Israel, 38 (i) pd 197, 259). On fraudulent claims, also see *Witness.
The prevailing custom in the rabbinical courts in Israel is to publish judgments in the name of the judge who wrote the opinion (Shochetman, Seder ha-Din, 373). In an Israeli Supreme Court decision (hc 228/64 Plonit v. Beit ha-Din ha-Rabbani ha-Eizori, 18 (4) pd 141, 156), Justice Haim Cohn brought support for the importance of publishing the minority opinion from R. Judah's statement that the minority view is preserved along with that of the majority so that it may be relied upon should the need arise (Tosefta Eduyyot 1.4).
Although halakhah does not strictly require that a decision be delivered in writing, special takkanot requiring written decisions were instituted in various places (Takkanot Medinat Mehrin (Jerusalem, 1952) §379, p. 125; Takkanot Nikolsberg (Jerusalem, 1962) §126, p. 135). The Rules of Procedure of the Rabbinical Courts of Israel also establish that both the decision and the judgment must be rendered in writing (Rule 112).
The overwhelming majority of judgments issued by rabbinical courts over the generations did not state the reasoning (E. Shochetman, "The Obligation to State Reasons for Legal Decisions in Jewish Law," in: Shenaton ha-Mishpat ha-Ivri, 6–7 (1979–80), 335–38). The establishment of courts of appeal by the Chief Rabbinate of Israel institutionalized the right of appeal, and thus made it necessary that courts reason their decisions. The Rules of Procedure of the Rabbinical Courts of Israel establish a general rule requiring them to record the reasoning for their decisions (rule 114), as is the accepted practice in civil courts.
Many legal systems recognize the doctrine of res judicata, according to which a matter will not be reopened once all avenues have been exhausted and a final decision has been rendered. Jewish law adopts an entirely different approach and does not recognize such a doctrine. An expression of the preference of this approach to that of English law may be found in an opinion by Justice Berenson (ca 395/60 Amrani v. Attorney General, 15 pd 594, 602), in which he states that "it would be preferable to make recourse to this rule [Sh. Ar., Ḥm 20] that is better suited to the conditions of Israel than to be loyal to the severe, rigid English rule."
In order to challenge a decision, the petitioner must show that the new evidence was not in his possession and that he was unaware of it (Resp. Rosh, 13.20). Relying upon sources in Jewish law, Justice Kister held that new evidence cannot be introduced after the rendering of a decision if it could have been brought earlier (ca 211/65 Attorney General v. Mazan, 19 pd 32, 42–44).
There is a difference of opinion as to whether a party may challenge a decision on the basis of new arguments that were not raised at trial. One view is that a decision can only be challenged on the basis of new evidence (Sho'el ve-Nish'al le-Rabbi Khalfon Moshe ha-Kohen, Pt. 5, Ḥm § 8, s.v.ve-khen yesh le-hokhi'ah). However, the prevailing view would appear to be that a decision can be challenged on the basis of new arguments (Sefer Me'irat Einayim on Sh. Ar., Ḥm 20:1; Arukh ha-Shulḥan, Ḥm 20:3).
Where there is a suspicion that the court may have erred in rendering judgment, the challenge need not originate with one of the parties. The court itself may – and even must – take the initiative to reverse the judgment (Sh. Ar., Ḥm 17:8).
Halakhic sources make no mention of appellate courts as a permanent institution, nor is there any recognition of a doctrine of stare decisis (= binding precedent). Nevertheless, appeals courts were established at various times and places, through communal edict (takkanah; see Assaf, Batei ha-Din ve-Sidreihem le-aḥar Ḥatimat ha-Talmud (Jerusalem, 1924) 74ff.). This is also the basis for the establishment of a permanent court of appeals in the rabbinical court system, and is one of the important innovations of the Rules of Procedure of the Rabbinical Courts of Israel. Although some rabbinical court judges reject the authority of the Supreme Rabbinical Court of Appeals to order them to act contrary to their own opinions, the position of the Supreme Rabbinical Court of Appeals is that it is empowered to reverse the decisions of the district rabbinical courts, and that the district rabbinical courts are subject to the orders of the Supreme Rabbinical Court of Appeals (Shochetman, Seder ha-Din, 447–450). See also *Appeal.
deviation from procedure
Just as, in an emergency, it is possible to inflict punishment upon those whom the halakhah exempts from punishment, it is similarly possible to deviate from established procedure in an emergency. Strict adherence to the established rules of procedure may impede bringing criminals to justice and punishing them. It is therefore permissible to deviate from the rules and to impose punishment that is not grounded in the Torah. Thus, we are told that Simeon ben Shetaḥ hanged 80 women in one day (Mish. Sanh. 6:4), contrary to the rule that one may judge only one person a day. Rashi explains that this was carried out in an emergency situation, so that "the relatives not conspire to save them" (Rashi, at Sanh. 45b).
Imprisonment is not always carried out by force of a court order. This was the case, for example, in regard to a tax debtor who is "imprisoned in jail and is not brought before the court, but the city dignitaries judge him according to their custom" (Resp. Rosh 7:11). Nevertheless, the rules of Valladolid of 1432, governing the congregations of the Kingdom of Castile, included the following rule with regard to arrests: "We establish that a judge may not order the arrest of a Jew or Jewess except by an arrest order issued in writing, signed by the judge and two witnesses. In every order – other that an arrest order for informing or for capital crimes – the judge must state the specific reasons for issuing the order" (see M. Elon, Ha-Mishpat Ha-Ivri, 1:647).
Israel Supreme Court Deputy President M. Elon relied upon the principles of Jewish Law in rendering important decisions on the subject of the arrest of suspects (see, e.g., ma 335/89 State of Israel v. Lavan, 43 (2i) pd 410; ma 71/78 State of Israel v. Abukasis, 32 (2) pd 240). In greater detail, see *Detention.
Nevertheless, one of the great decisors ruled with regard to an informer that, although a person cannot be tried in absentia, if "the court is of the belief that this involves a danger, then, in an emergency, the court may deviate from the law for the purpose of creating a fence around the Torah" and hear the case in the absence of the defendant (Resp. Rivash, no. 237).
The role of prosecutor was generally fulfilled by the witnesses who observed the criminal conduct (Num. 15:32–33). Where the death penalty was imposed, the witnesses executed the judgment, inasmuch as they had actually seen the commission of the offense with their own eyes (Rambam's Mishnah Commentary, at Sanh. 7:3).
From certain verses in the Torah (Num. 35:22–25), the Sages concluded that a court serves two functions – judging and defending the accused (M. Sanh. 1.6; Yad, Sanh. 5:3). The Sages were of the opinion that defending the accused was one of the court's primary roles. Thus, a significant part of criminal procedure is devoted to the defense of the accused against conviction for an offense, and the court serves as the defendant's guardian and advocate.
The principle that we "begin in favor" of the defendant was put into effect by the Israeli Supreme Court in an interesting way (hc 3412/91, Sufian v. idf Commander, 47 (2) pd 843, 851) by Deputy President Menachem Elon, who wrote "that today the principle 'begin in favor' in criminal law includes, first and foremost, both the right of an arrested suspect to know that he has a right to meet with counsel, and the duty of the authorities to inform him of that right."
The principle that a person who has been acquitted cannot be convicted upon appeal was expressed by the Israeli Supreme Court (Cr. A. 348/78 State of Israel v. Mishali, 32 (3) pd 245, 250) when Justice Menachem Elon wrote: "This far-reaching principle [of Jewish Law] does not exist in our criminal law, by which we must rule, but the concept it embodies was given some expression in the accepted principle that an appellate court must not act to the full extent of the law in the framework of an appeal by the state against the leniency of punishment."
Testimony is not to be heard through a translator (Mish. Makkot 1:9), for fear that the judges and the translators may not adequately understand the witness's intent. For details on the examination of witnesses in criminal law, see Witness.
Supreme Court Justice Tirkel grounded the principles of open court in the verse "and be guiltless before the Lord, and before Israel" (Num. 32:22). From this verse, the Sages learned "that a person must fulfill his obligations to his fellow beings in the manner that he fulfills his obligations before the Divine" (Yoma 38a). This rule applies, in particular, to those fulfilling judicial and public functions, in order to keep them above suspicion. Infringement of the open court principle might lead to suspicion that the judge is not objective. Nevertheless, Justice Turkel added that "even the sources of Jewish Law recognized the principle of open court to be a relative principle that may, at times, retreat before defined rights and interests," among these security interests (hc 4841/04 Ra'id Salaḥ v. State of Israel, Takdin Elyon 2004 (2), 3304, para. 6).
Nevertheless, it would appear as if the parties were not present at the critical juncture of the judges' deliberations (in this regard, see N. Rakover's article on criminal procedure [Ha-Praklit 18, p. 322], in which he cites sources indicating that the involved parties and others were not present during the judges' deliberations, and as if the parties were not aware of who voted for conviction and who voted for acquittal (325)).
The possibility of appealing a sentence was established in Lithuania in the 17th century. The defendant was granted 24 hours to give notice of his intention to file an appeal. If notice was given, execution of the sentence was stayed for eight weeks, which would appear to have been the time estimated for completing the appeal (Assaf, Batei ha-Din, 83–84).
[Yuval Sinai (2nd ed.)]
civil: H.B. Fassel, Das mosaisch-rabbinische Gerichts-Verfahren in civilrechtlichen Sachen (1859); M. Bloch, Die Civilprocess-Ordnung nach mosaisch-rabbinischem Rechte (1882); J. Kohler, in: Zeitschrift fuer vergleichende Rechtswissenschaft, 20 (1907), 247–64; Juster, Juifs, 2 (1914), 93–126; T.S. Zuri, Mishpat ha-Talmud, 7 (1921); Gulak, Yesodei, 4 (1922); S. Assaf, Battei ha-Din ve-Sidreihem Aḥarei Ḥatimat ha-Talmud (1924); idem, in: Ha-Mishpat ha-Ivri, 1 (1925/26), 105–20; M. Frank, Kehillot Ashkenaz u-Vattei Dineihem (1937); N. Kirsch, in: Yavneh, 3 (1948/49), 128–36; B.M. Rakover, in: Sinai, 38 (1955/56), 312–20; A. Weiss, Seder ha-Diyyun (1957); Elon, Mafte'aḥ, 190–9; idem, in: ilr, 3 (1968), 426–8, 437f.; 4 (1969), 103f. Penal: H.B. Fassel, Das mosaisch-rabbinische Strafgesetz und strafrechtliche Gerichts-Verfahren (1870); J. Fuerst, Das peinliche Rechtsverfahren im juedischen Alterthume (1870); M. Bloch, Das mosaisch-talmudische Strafgerichtverfahren (1901), Juster, Juifs, 2 (1914), 127–214; T.S. Zuri, Mishpat ha-Talmud, 7 (1921); H.E. Goldin, Hebrew Criminal Law and Procedure (1952); A. Weiss, Seder ha-Diyyun (1957); J. Ostrow, in: jqr, 48 (1957/58), 352–70; N. Rakover, in: Ha-Peraklit, 18 (1961/62), 264–72, 306–30; Elon, Mafte'aḥ, 190–9; Mendelsohn, The Criminal Jurisprudence of the Ancient Hebrews (19682); H.E. Baker, Legal System of Israel (1968), 197–231. add. bibliography: civil: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:180, 247, 321f., 434f., 497–504, 533f., 568f., 603, 617f., 622, 633, 639f., 645–647, 663, 667–76, 669, 715, 757, 810f., 816f.; 2:856, 862, 885, 1138, 1264; 3:1420, 1442, 1473, 1486; idem, Jewish Law: History, Sources, Principles (1994), 1:202, 287, 384f; 2:529, 605f., 609, 649f., 698f., 747, 763f., 769, 783, 791f., 800f., 820, 824, 827, 834, 876–77, 883, 933, 992f., 1000f; 3:1047, 1053, 1079, 1366, 1533; 4:1692, 1703–4, 1715, 1753, 1767–70, 1812–14; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest) (1986), (2), 312–315; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest), (1997), 214–218; S. Albeck, Law Courts in Talmudic Times (Heb., 1980); S. Darnes, "Ḥoser Formalizim be-Sidrei ha-Din be-Vatei ha-Din ha-Rabbaniyym be-Yisrael," in: Dinei Yisrael, 10–11 (1981–83), 27–124; Y. Haba, "Etikah shel Nihul Hitdayyenut ba-Mishpat ha-Ivri," in: Mishpatim, 25 (1995), 333–72; N. Rackover, Ha-Sheliḥut ve-ha-Harsha'ah ba-Mishpat ha-Ivri (1972), chp. 8; A.H. Shaki, "Kavvei Yiḥud be-Sidrei ha-Din ha-Rabbaniyyim u-ve-Gishat ha-Dayyanim le-Ti'un Formalisti le-Or Pesikat Batei ha-Din ha-Rabbaniyyim be-Yisrael," in: Sefer Sanhedrai (1972), 275f.; M. Silberg, In Inner Harmony (Heb., 1982), 207–24; E. Shochetman, Seder ha-Din be-Mishpat ha-Ivri (1988); E. Shochetman, "Ḥovat ha-Hanmakah be-Mishpat ha-Ivri," in: Shenaton ha-Mishpat ha-Ivri, 6–7 (1979–-80), 319–97; Y. Sinai, "Me'uravut Bet ha-Din be-Halikh ha-Diyyuni be-Mishpat ha-Ivri (2003); idem, "Judicial Treatment of Fraudulent Claims (Din Merummeh): An Examination of Legal Traditions," in: Jewish Law Annual (2006); idem, "Koḥo shel Dayyan de-Din Merummeh u-ve-Kim Leih be-Gavei be-Mishnat ha-Geonim ve-ha-Rambam,"in: Ma'aliyot, 25 (Koveẓ le-Ẓiyyun Shemoneh Me'ot Shanah li-Fetirat ha-Rambam; 2005), 269–92; Z. Warhaftig, Studies in Jewish Law (Heb., 1985), 13–77. criminal: M. Elon, Ha-Mishpat ha-Ivri (1988), 568–69, 647–49; A. Kirschenbaum, The Criminal Confession in Jewish Law (Heb., 2005); idem, "Aspects of Criminal Defense in Jewish Law," in: Dinei Israel, 22 (2003), 9–48 (Heb.).