What Shall We Do With The Recalcitrant Witness?

“And should a person offend when he hears a voice in adjuration, he being a witness, or has seen or known, if he does not tell, he shall bear his punishment” (Leviticus 5,1, Robert Alter translation).

This is a strange verse, not only in its language, but in the idea that lies behind it. The word that Robert Alter translates as punishment is could equally be expressed as ‘guilt’, because although the Bible specifies actions to be taken by the offender, they are not a punishment. The word translated as ‘adjuration’ is more usually rendered to mean a curse or an oath.

The verse is discussing someone who has been called to testify in court and who fails to go. The summons they received came in the form of an oath or a curse, which would take effect if they did not heed the call.

Further on the Torah explains that in order to acquit themselves of the offence, the person who would not testify was required to make a confession and bring a sacrifice. A sacrifice was not a punishment, in this case it was a way of reconciling oneself with heaven, linked to the process of confession. There is no punishment as such and the offender was not required to compensate those whom he had let down by not testifying.

A modern court does not treat recalcitrant witnesses so lightly. If someone won’t testify, the court issues a subpoena to compel the witness to attend. If they still do not testify, they risk a fine or prison. But the Torah (as opposed to later rabbinic law) does not require this.

There are two reasons for the difference between the Torah’s approach and the way things are done today. The first is that, in the eyes of the Torah, the witness who does not turn up has not actually done anything. There is no action involved. In the Torah, criminal and civil offences are only committed if something is done. There needs to be both intention and action on the part of the offender to make them liable. The only time this does not apply is in ritual law, if for example one does not fulfil a commandment. But ritual law is between us and heaven; as far as our relationship with other people is concerned, offences are only committed if we actually do something intentionally.

The other, more philosophical reason why the Torah does not impose a punishment on a recalcitrant witness is to do with the very different system of values that that pertained in biblical times. Oaths, confessions and sacrifices were taken very seriously. People who swore on oath were invariably believed; it was barely conceivable that someone would endanger their soul by swearing falsely. And if they were brazen enough to swear falsely then there were consequences. False witnesses, who had lied in order to convict an innocent person, would be given the same punishment they had hoped would be imposed upon their victim.

Although it might appear to contemporary minds that a recalcitrant witness has committed an offence, either against the accused if they failed to offer evidence in their defence, or against the victim if they didn’t testify for the prosecution, the Torah does not see it like this. They have performed no action that either harms or assists. As far as the Torah is concerned, their only offence is against heaven. They had been summoned to court under penalty of an oath, by spurning that summons they had defied heaven. They were required to assuage their guilt, by confession and sacrifice.

We can wonder how things might be different today if our values still included fear of heaven, if people saw themselves subject submission to a higher power. It wasn’t so long ago that those values still held, the fact that witnesses in court today are obliged to swear an oath, harks back to that earlier time. But if we were creating a justice system today, would an oath in the witness box be included?

Because our values as a society have changed we often hear complaints that they have been eroded, that we have lost our moral compass. There may be some truth in that. But does that mean we would prefer to return to the systems of justice and authority outlined in the Torah? Would we really want to live in a theocracy?

Today we recognise that being a recalcitrant witness is not a victimless crime. Someone too lazy to give evidence needs the sanctions of the law to compel them. Equally, someone who is too scared to speak out, as happens too frequently, needs encouragement, support and, if necessary, effective protection.

© 2019 Harry Freedman Books