JUDAICA - Wisdom In Torah

evidence
the evidence of the prosecuting witnesses had been found admissible
and prima facie conclusive, public announcements
had to be made inviting any person able to raise a point in favor
(zekhut) of the accused, to come forward and speak (Sanh.
6:1). While the charge against the accused could be proved
only by the viva voce evidence of witnesses, any shred of evidence
from which a defense could be inferred would be used
in his favor (Rashi, Sanh. 42b). For this purpose, a favorable
point is not necessarily a rebuttal of the testimony of the prosecuting
witnesses, but merely any fact or circumstance likely
to arouse in the mind of the court a doubt as to the guilt of
the accused; hence such points did not automatically result in
an acquittal, but they were sufficient justification for the case
to be remitted to the court for reconsideration – even four or
five times. There is no explicit presumption of innocence in
Jewish law; the requirements of proof of guilt are, however, so
stringent and rigorous, and the possibilities of establishing a
valid defense so wide and flexible, that a conviction is much
more difficult and an acquittal much easier to obtain than under
a rebuttable presumption of innocence.
POST-TALMUDIC LAW. In talmudic law the standards of
proof required, even in criminal cases, were largely reduced
where the jurisdiction rested on considerations of the “emergency”
(hora’at sha’ah; see *Extraordinary Remedies). After the
virtual cessation of jurisdiction in capital cases (see *Capital
Punishment), and particularly in post-talmudic law, all criminal
jurisdiction rested on considerations of “emergency” to
which the provisions relating to the dispensation from the
normal rules of evidence and procedure were held to apply.
The rules of evidence prevailing in the Sanhedrin were held
inapplicable in the courts of the Diaspora, when they were
called upon to enforce public order by the imposition of *fines
or *flogging (Resp. Rashba, vol. 4, no. 311).
Evidence in Civil Cases
BURDEN OF PROOF. It was in the law of evidence in civil
cases in which the genius of the talmudic jurists, unfettered
by scriptural restrictions, could develop fully. The obstacle that
there was to be “one manner of law” (Lev. 24:22) in criminal
and civil cases alike (Sanh. 4:1) was overcome with the assertion
that the Torah takes pity on the money (property) of the
people of Israel, and if the standards of proof in civil cases
were as strict and rigorous as in criminal cases, nobody would
lend his neighbor any money anymore, for fear the borrower
would deny his debt or the memory of a witness would fail
him (TJ, Sanh. 4:1). Accordingly, a balance had to be struck
between the exigencies of formal justice which required the
burden of proof to be on the initiator of the proceedings (Sif.
Deut. 16; BK 46b) and commercial and judicial convenience
which required the greatest possible elasticity in handling and
discharging that burden.
PRESUMPTION OF RIGHTFUL POSSESSION. The fundamental
rule that the plaintiff has the burden of proving his claim (hamoẓi
mi-ḥavero alav ha-re’ayah) is based on the presumption
(*ḥazakah) of the rightful possession by the defendant of the
chose in action – i.e., the thing (or money) claimed (ḥezkat
mamon): so long as the defendant’s possession was not proved
to be unrightful, it will not be disturbed – hence a defendant
in possession is always in a better position than the plaintiff
(Shevu’ot 46; Maim. Yad, To’en ve-Nitan, 8:1; Sh. Ar., ḤM 133:1).
But in order to raise the presumption of title, the possession
must be accompanied by a claim of right (BB 3:3 and Codes);
where the defendant in possession does not claim a specific
right thereto, the burden is shifted to him to prove a right to
retain the chose in action. Or where a claim is made according
to custom, and the defense (that is, the possession) is contrary
to custom, such as in a claim for workmen’s wages (TJ, BM 7:1,
11b), the presumption of rightfulness operates in favor of the
plaintiff and shifts the burden of proof onto the defendant. In
an action between heirs, where the defendant has seized part
of the estate, his claim of right is not any better than that of the
plaintiff, and he will have to prove that his possession is rightful
(Yev. 37b and Tos. ibid.). Where a man was seen to take a
chattel out of a house, it was held to be on him to prove that
he took it rightfully (BB 33b; Hai Gaon, Sefer ha-Mikkaḥ veha-Mimkar,
ch. 40), presumably because his possession was
too recent to give rise to any presumption to that effect. Conversely,
past possession which had meanwhile ceased (ḥezkat
mara kamma) would give rise to a presumption of title only
where the other party was not in possession either (BM 100a).
These rules do not apply to possession of land and houses but
only of money and chattels – for lands and other immovables
there must be an uninterrupted possession of three years (BB
3:1), coupled with a claim of right (BB 3:3), in order to give rise
to a presumption of title.
PRESUMPTIONS AND QUASI-PRESUMPTIONS OF CONDUCT.
In order to mitigate the burden of proof and to simplify the
judicial process, the sages have, presumably from their own
accumulated judicial experience, established a vast number
of quasi-presumptions, rooted in the psychology of human
conduct, which apply to every litigant before the court, unless
and until the contrary is proved. To give a few examples:
a man does not waste his words or his money in vain without
good cause (Ket. 58b, 10a); nor will he stand by inactive
when his money is taken or his property endangered (Shab.
117b, 120b, 153a; Sanh. 72b) or when a wrong is being done or
threatened to him (BB 60a). A man does not pay a debt before
it falls due (BB 5a–b); nor does a man tolerate defects in
a thing sold to him (Ket. 75b–76a). On the other hand, no
man buys a chattel without having first seen and examined
it (ibid.). A debtor will not easily lie in the face of his creditor
(BM 3a), nor a wife in the face of her husband (Ket. 22b),
nor anybody in the face of a man who must know the truth
(Tos. Ket. 18a; BK 107a). A man is not expected to remember
things which do not concern him (Shevu. 34b). A man will
not leave his house empty and his household unprovided for
(Ket. 107a). However, he is apt to understate his fortune so as
not to appear rich (BB 174b–175a), and will rather have one
578 ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 6