Hebrew Criminal Law

The Hebrew system of justice is founded on two documents: the Pentateuch and the Talmud.

  • The Pentateuch (also known as the Mosaic Law) consists of the first five books of the Old Testament.
  • The Talmud was a collection of traditions and commentaries that were passed down orally from generation to generation over many centuries.

The Talmud consisted of two parts, the Mishna and the Gemara. The Mishna consisted primarily of laws and regulations. The Gemara contained commentaries and opinions. The content of the Talmud was passed down orally from generation to generation. It was not committed to writing until after the destruction of the temple in 70 AD. The Talmud is very large. If translated into English, it is estimated that it would occupy 400 volumes of 360 pages each.

There were three types of courts in the Hebrew system

  1. The Great Sanhedrin consisting of 71 members;
  2. Minor Sanhedrins, each consisting of 23 members;
  3. Lower Tribunals, each consisting of three members.

The highest court was the Sanhedrin. This was this court that convicted Jesus. The number of members on the Sanhedrin (71) was derived from Numbers 11: 16–17

The Lord said to Moses: “Bring me seventy of Israel's elders who are known to you as leaders and officials among the people. Have them come to the Tent of Meeting, that they may stand there with you. I will come down and speak with you there, and I will take of the Spirit that is on you and put the Spirit on them. They will help you carry the burden of the people so that you will not have to carry it alone.

Seventy elders plus Moses makes 71. A quorum of 23 judges was required for a trial. Any members who had an interest in the case or had a grievance against the accused could not sit as judges.

There were strict requirements for membership in the Sanhedrin. A member must

  1. be of Hebrew lineage
  2. be learned in the Law
  3. have worked their way up through the lower courts, i.e., they had experience in legal matters
  4. have thorough knowledge of the sciences (astronomy, medicine, etc.)
  5. be an accomplished linguist, familiar with the languages of surrounding nations
  6. be modest, popular, of good appearance, not haughty
  7. be pious, strong, courageous

The Sanhedrin was divided into three chambers as follows:

  1. The chamber of the priests;
  2. The chamber of the scribes, or doctors;
  3. The chamber of the Elders.

Each chamber was usually composed of 23 members, which together with the president and vice-president gave the number 71. The chamber of priests was composed exclusively of those who held the rank of priest. The chamber of scribes included Levites and laymen well versed in the law. The chamber of elders was composed of men held in high esteem by the nation. It is known that at the time of Jesus there were 12 former high priests in the chamber of priests. One of the members of the chamber of scribes was Gamaliel. Joseph of Arimathea and Nicodemus were members of the chamber of elders. The president of the Sanhedrin was often the high priest, but this was not required. Historically the office of high priest had been handed down from father to son, starting with Aaron. After Judea became a Roman province, the office of high priest became a political appointment which usually went to the highest bidder. During this time the high priest was replaced almost yearly.

Under Hebrew law there were four methods of capital punishment:

  1. Beheading
  2. Strangling
  3. Burning
  4. Stoning

Beheading was the punishment for murder and communal apostasy from Judaism to idolatry. Strangling was the punishment for adultery, kidnapping, false prophecy, and bruising a parent. Burning was the punishment for various forms of incest. Stoning was the punishment for magic, idolatry, blasphemy, cursing a parent, violating the Sabbath, child sacrifice, and violating filial duties (such as the prodigal son).

In beheading the accused was strapped to a post and his head severed with a sword. In strangling the accused was buried up to their chest and then strangled with a rope. Burning was the same as strangling except that a lighted wick was placed in the mouth of the condemned as soon as they became unconscious. In stoning the condemned person was stripped and thrown violently from the top of a steep hill or cliff. Usually the fall broke their neck or spine. If they were not dead from the fall, large rocks were thrown down to crush the victim. In all cases the executions were carried out by the complaining witnesses.

There are a number of distinctive features of the Hebrew court system

  1. There could be no trial or questioning before a single judge. Only God was considered able to judge alone.
  2. There were no lawyers or advocates for the accused. The judges were the defenders as well as the judges.
  3. There were no public prosecutors.
  4. The witnesses were the accusers. They provided both the indictment and the evidence. In capital cases, they were also the executioners.
  5. At least two witnesses in addition to a prosecuting witness were required to present testimony against the accused in order to secure a conviction. Witnesses gave their testimony separately and always in the presence of the accused. A witness's testimony must cover the entire case. A testimony covering only one part of a sequence of events involved in the crime was not allowed. The Testimonies of all witnesses had to agree in every essential detail or the accused would be released.
  6. Women, Family members, friends, and accomplices of the accused were not allowed to be witnesses.
  7. A witness shown to be a liar was subject to the same punishment the accused faced. This is based on the command in Deuteronomy 19: 18–21.
  8. The accused is not required to testify against himself. A confession is not considered as evidence unless two witnesses can validate it in detail.
  9. Circumstantial or hearsay evidence were not allowed.
  10. Everything was to be done in public. There were no closed sessions.
  11. No session of a trial could be held at night. A session could not begin before the morning sacrifice (at daybreak) and each session must close before the evening sacrifice (at sunset).
  12. No punishment or abuse against the accused could be administered prior to conviction.
  13. An unusual rule was that a unanimous vote against the accused resulted in acquittal. It was reasoned that the accused in this case had no friend in the court.
  14. No trial involving capital punishment could begin the day before a Sabbath or feast day.
  15. Any sentence of death pronounced outside the hall Gazith (of hewn stones) is not valid.

The Hebrews had a dread of putting a fellow Israelite to death. Thus, a death sentence was not issued very often. The following is a quotation from the Mishna

The Sanhedrin, which so often as once in seven years condemns a man to death, is a slaughterhouse.

Let us now look at how an arrest and trial would normally proceed. The first step is a complaint to an official of the court by a witness. This complaint must contain the charge against the accused and the charge can not be changed at a later time. If this complaint is deemed worthy of a trial, the accused is arrested and the complaining witness is designated as the prosecuting witness. As in all of the court proceedings, the arrest must be made during daylight hours.

Prior to the start of the trial, the witnesses against the accused (the prosecuting witness and at least two others) were examined separately by a special committee of the court to see if their testimonies are valid and do not contradict one another. Testimonies found to be invalid are removed. In addition, irrelevant details are stripped from testimonies so as not to prejudice the court.

The trial itself would commence after the morning sacrifice at daybreak. It usually took at least an hour to assemble all the judges. The judges would enter the chamber and sit in a semicircle, the high priest in the middle. In front of the high priest would sit two scribes. One scribe would record the testimonies, arguments, and votes against the accused. The other would perform the same duties for the accused. The prisoner was placed in front of the high priest where all could see him.

The witnesses against the accused are examined first. The examination begins with a fixed set of seven questions called the Hakiroth. These questions are as follows:

  1. Was it during a year of jubilee?
  2. Was it an ordinary year?
  3. In what month?
  4. On what day of the month?
  5. At what hour?
  6. In what place?
  7. Do you identify this person?

After these questions were satisfactorily answered, the next step was a rigid examination into the facts and circumstances relating to the commission of the crime and the connection of the accused to the crime. This process of examination and cross-examination was termed the Bedikoth.

Next, the witnesses for the defendant are heard. During this time, the accused is allowed to say anything in his behalf. If at any point it can be shown that the testimony of one of complaining witnesses is false or that it contradicts another witness, the defendant is immediately released.

Once the testimonies are heard, a debate begins. Nothing is allowed to be said against the accused until at least one judge speaks in his behalf. All the evidence is then examined and discussed in detail. Following the debate, a vote is taken. The vote proceeds from the youngest to the oldest so that the younger members will not be swayed by the vote of the more prestigious members. Each member stands in turn and casts his vote, giving reasons for the vote. A majority of two was required for conviction. A strange rule was that a unanimous vote for conviction would result in the immediate release of the defendant. The idea being that the defendant then had no friend in the court. If the defendant was acquitted, the trial was over. If convicted of a capital crime, a second trial was held the following day.

The day of the second trial was considered a fast day. In this trial, the evidence was reviewed and new arguments could be presented. At the end of this trial, another vote was taken. Any of the judges that had previously voted for acquittal could not change their vote. However, a judge that voted for conviction could change his vote to acquittal if he had good reasons.

The execution process begins immediately after a conviction. It must occur before sunset. There is a procession to the execution site. At the beginning of the procession there is a herald carrying a crimson banner on a pole. He cries out to the crowd along the way that ____ is being executed for the crime of ____ on the testimony of ____ and ____. He encourages anyone who has anything favorable to say about the accused to come forward. If someone comes forward with new evidence, the procession is halted and the prisoner is taken back to the judgment chamber for further deliberations. On arrival at the execution site, the prisoner is given a mixture of frankincense and myrrh added to vinegar or wine. Stupefaction follows, rendering the prisoner unconscious of his impending doom and insensitive to the agonies of death.

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