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The Trial of Seantum
|Title||The Trial of Seantum|
|Publication Type||Book Chapter|
|Year of Publication||2008|
|Authors||Welch, John W.|
|Book Title||The Legal Cases in the Book of Mormon|
|Publisher||BYU Press/Neal A. Maxwell Institute for Religious Scholarship|
|Keywords||Chief Judge; Gadianton Robbers; Laws; Murder; Nephi (Son of Helaman); Prophecy; Prophet; Seantum; Secret Combinations|
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The Trial of Seantum
About thirty years after the rebellion and execution of Paanchi, legal difficulties arose in the life of Nephi, the son of Helaman. Helaman had become the chief judge after all three of the sons of Pahoran had been killed within two years (Helaman 1:8, 9, 21), and Nephi succeeded his father after he had ruled for a dozen years (3:37). At the time of the trial of Seantum, Nephi was no longer serving as chief judge over the Nephites (5:1), having become “weary because of their iniquity,” for they “could not be governed by the law nor justice, save it were to their destruction” (5:3–4). The text specifically associates their unrighteousness with abrogating the commandments of God and altering or rescinding the laws of King Mosiah (4:21–22).
In response to these legal changes, Nephi and his brother Lehi had left their seat of power in the capital city of Zarahemla and (much as Alma the Younger and the four sons of King Mosiah had done half a century earlier) proselytized for one year, going city by city, first among the Nephites in the north and then to the Lamanites in the south (Helaman 5:15–17). Their greatest success was among the Lamanites, some of whom returned with Nephi and Lehi and tried to sway the Nephites to return to their previous ways of faith, obedience, and repentance. Six years later, Nephi would make one more effort to prophesy and preach to the people in the north, but he was unequivocally rejected and “could not stay among them” (7:3).
Upon his return to the city of his birth, Nephi found conditions utterly lamentable. He describes the situation in terms that epitomize a complete state of unrighteous judgment, for the Gadianton robbers had corruptly usurped the judgment seats and spawned all sorts of corruption. They had laid “aside the commandments of God,” had failed to act right before God even in small ways, had done “no justice unto the children of men,” had condemned “the righteous because of their righteousness,” had let “the guilty and the wicked go unpunished because of their money,” and had taken personal advantage of their power in office “to rule and do according to their wills, that they might get gain and glory,” and especially to commit adultery, to steal, and to kill (Helaman 7:4–5). One cannot overlook the obvious allusions here in Nephi’s bill of particulars to the apodictic commandments in the biblical code of righteous judgment in Exodus 22–23. The judicial system in Zarahemla had deteriorated into a complete disregard of the express standards of righteous judgment: the corrupt judges had condemned and killed the poor and “the innocent and righteous” (as condemned in Exodus 23:3, 6, 7), they had favored the rich (prohibited by 23:3, 8), and they had failed utterly to be “holy men unto [God]” (as required by 22:31).
Seeing this terrible state of judicial depravity, Nephi took refuge on a tower in the garden of his ancestral residence (Helaman 7:10), where he began to mourn and loudly lament the wickedness and apostasy of the Nephites as if he were at a funeral (v. 11).1 Nephi told them that unless they would repent, God would scatter them forth and they would “become meat for dogs and wild beasts” (v. 19). This, of course, could very well have been recognized by these people as precisely the same shockingly notorious fate that had befallen the city of Ammonihah about sixty years earlier (where the people’s “carcases were mangled by dogs and wild beasts of the wilderness,” Alma 16:10), and also as the same curse that had been placed on Noah’s people by the martyr-prophet Abinadi a century before (that “the vultures of the air, and the dogs, yea, and the wild beasts, shall devour their flesh,” Mosiah 12:2). In the ancient world generally, one of the most disgraceful things that could be done to a human corpse was to deny it a proper burial or leave it exposed to the elements and wild animals (1 Kings 16:4; 21:19, 23; Jeremiah 26:23). In a classic prophetic judgment speech, Nephi pronounced curses on the people three times: “Yea, wo be unto you,” “Yea, wo shall come unto you,” “Yea, wo be unto you.” Twice he prophesied that they would be “utterly destroyed” and “destroyed from off the face of the earth,” and finally he solemnly testified that “these things are true because the Lord God has made them known unto me” (Helaman 7:24–29).
Thus it is not surprising that Nephi’s audience in Zarahemla reacted sharply to his piercing condemnation. If Nephi had not been able to produce a prophetic sign validating the truthfulness of his testimony against them, the people would certainly have commenced definitive legal action against him, just as quickly and as sharply as Noah had rejected Abinadi and the people of Ammonihah had recoiled against Alma and Amulek.
The Limited Power of the Nephite Judges
In an effort to mobilize the populace against Nephi, the corrupt judges in the crowd began encouraging the people to take action, prodding and asking them, “Why do ye not seize upon this man and bring him forth, that he may be condemned according to the crime which he has done?” (Helaman 8:1). The crime named by the agitators was reviling the people and the law (v. 2). That the judges did not bring an action against Nephi themselves indicates quite clearly that judges in Zarahemla did not have authority in the law of Mosiah to initiate ordinary lawsuits, perhaps because of the obvious conflict of interest that judges would probably have if they were also involved as prosecutors or otherwise interested parties. Apparently only a private party—one or some of the people—could do this. Consistently in the Nephite legal cases, only the people had standing or the right to appear as plaintiffs: this was the case with Nehor (a group of church members had initiated the action against him; Alma 1:10), Abinadi, Alma and Amulek, Korihor, and Paanchi (a broad popular consensus supported the case against the accused; Mosiah 12:9; Alma 11:20; 30:20–21; Helaman 1:8), but most explicitly and definitely in the present case. It seems unlikely that the wicked judges who opposed Nephi were reluctant to act against him for political reasons, for they protested in public against him. Thus they probably would have accused him themselves if they had had the legal power or procedural standing to do so. This limitation on the power of the Nephite judges seems to be a constraint carried over from Israelite and Nephite restrictions on the powers of kings, who likewise under ancient law could not (or at least did not) act as judges on their own initiative.2
One wonders how many people were required to participate in order to commence an action under Nephite law. Requiring a majority of the enfranchised population to commence every judicial proceeding would have been impractical, and so it appears that something less than a majority probably had standing in this regard. Indeed, the vocal opposition against Nephi did not subside on account of insufficient numbers, but rather because of “fear” (Helaman 8:4, 10). In any event, no policemen, public prosecutors, or state attorneys general existed in this civilization who could file a complaint at the behest of the judges, on behalf of the people, or in the name of the city or land of Zarahemla.
Instead, the judges agitated the people, suggesting to them that they had ample grounds to arrest Nephi since they had seen and heard “him revile against this people and against our law” (Helaman 8:2). Nephi’s complete innocence, however, is assured from the outset, at least under the higher commandments of God and in the eyes of the writers or abridgers of the book of Helaman: “Nothing did he speak which was contrary to the commandments of God” (v. 3). This editorial exoneration appears to have been inserted as an irrefutable exculpation from any charge of reviling or as a defense against any future criticism of Nephi’s conduct.
A Public Matter
Nephi’s condemnation of “all this people, even unto destruction” (Helaman 8:5) resulted in an emotionally charged set of spontaneous debates and “contentions” (v. 7).3 Some argued vehemently against Nephi, while others spoke up in his defense (vv. 5–9). This turbulent scene is reminiscent of the typical public setting of ancient Israelite trials: “There is nothing private about [the ancient Israelite] trial, for it is taking place in the public market-place, and many of the town’s inhabitants are there watching the proceedings with intense interest.”4
The result of the ensuing debate was that Nephi’s supporters eventually prevailed, and he was not taken to the judges for trial. He continued his speech and in the end gave the people evidence of their own wickedness by disclosing details of treachery in their own midst: “Behold [destruction] is now even at your doors; yea, go ye in unto the judgment-seat, and search; and behold, your judge [Seezoram] is murdered, and he lieth in his blood; and he hath been murdered by his brother, who seeketh to sit in the judgment-seat” (Helaman 8:27). Hearing these words, five runners were immediately dispatched by the people to see if Nephi had spoken the truth (9:1, 12). At the sight of the assassinated chief judge, the five men fell to the earth overcome. Other people, hearing the cry of the servants of the assassinated chief judge, arrived on the scene and, discovering the five men, concluded that they were the murderers and “laid hold on them, and bound them and cast them into prison” (v. 9).
A public proclamation was then sent out by messengers to announce the murder and to herald the apprehension of the suspects. One purpose served by this unusual announcement seems to have been the calling of a day of fasting and mourning (Helaman 9:10). The day after the death of a political leader was traditionally a day of fasting and burial in the Near East (1 Samuel 31:13; 2 Samuel 1:12; 3:35; 12:16–23).5 The calling of a special fast may also have set the stage for the inevitably ensuing legal investigations and pious procedures to detect and punish the culprit. King Ahab was able to create an aura of false solemnity at the outset of the trial of Naboth by proclaiming a fast (1 Kings 21:12), so the day of fasting in the case of Seezoram’s assassination may have served that purpose as well.
The Inadmissibility of Circumstantial Evidence
Following the burial of the murdered chief judge, the ruling parties wasted no time investigating the killing. On that same day, the five suspects were brought to the judges.6 The five suspects, however, could not be convicted on circumstantial evidence under a legal system in which the often-invoked two-witness rule was as inviolate as it was in the Israelite system: “Circumstantial evidence seems to be ruled out by the scriptural law since every fact must be substantiated by the testimony of two witnesses.”7 “No circumstantial evidence is ever sufficient to support a conviction.”8 As Irene and Yale Rosenberg have argued, “Even in cases like the bloody sword wielder in which accuracy might not really be a concern, the no conjecture requirement [of biblical and talmudic law] still precludes conviction because receipt of the evidence would violate the formal procedural rules established for ascertainment of guilt.”9 Presumably, divine retribution would deal with cases where the factually guilty were not convicted and cannot be convicted because of the lack of admissible, direct evidence of their secret or covert crimes (e.g., Deuteronomy 27:15, 24).
In this case, all of the evidence was circumstantial. No one had witnessed the killing of the chief judge, for Seantum had killed his brother Seezoram “by a garb of secrecy” (Helaman 9:6). Even the servants did not know who had committed the crime, for the judges had to press Nephi to “make known . . . the true murderer of this judge” (v. 17).
A Case of an Unobserved Murder
The case of an unwitnessed murder presented special problems under the law of Moses, requiring special rituals and oaths of innocence.10 If a person was “found slain in the land which the Lord thy God giveth thee to possess it, lying in the field, and it be not known who hath slain him” (Deuteronomy 21:1), then the law of Moses required the elders and the judges of the nearest city, in the presence of priests, to kill a heifer and ceremoniously wash their hands over the heifer and solemnly swear, “Our hands have not shed this blood, neither have our eyes seen it” (v. 7).11 The procedure in Seantum’s case never reached the stage of ritually expiating the blood of Seezoram, since the identify of the murderer was soon discovered. Nevertheless, at the time the five messengers were interrogated, the identity of the murderer was still unknown, and in this context these five men solemnly testified and declared their innocence before the judges, saying, “As for the murder of this man, we know not who has done it” (Helaman 9:15). Because these five men had been arrested, “cast into prison” (v. 12), and subpoenaed by the judges and were now making their statement in a judicial setting, one may assume that they swore an oath or were required to wash their hands in some solemn gesture of innocence. In any event, the testimony that they gave, “As for the murder of this man, we know not who has done it,” was formally consistent with the particular exculpatory statement called for in Deuteronomy 21:7, “Our hands have not shed this blood, neither have our eyes seen it.”
Legal Issues Regarding Collusion
Nephi was immediately suspected of being a “confederate” (Helaman 9:20)—in other words, of having colluded with the murderer so that he could pretend to prophesy the death of the chief judge. The suspicious people apprehended Nephi and caused that he “should be taken and bound and brought before the multitude” (v. 19).12 Again the decision whether to press charges rested with the people—not the judges, who despite their strong (but perhaps self-interested) suspicions (v. 16) could not commence a legal action against Nephi themselves to negate his criticism of their political corruption and wickedness.
It appears significant that the people next began to urge Nephi to acknowledge his “fault” (Helaman 9:20; see v. 17), as opposed to admitting any guilt. While nothing in the written texts of biblical law addresses this issue, under traditional oral Jewish law, conspirators and confederates were not considered equally culpable with the actual perpetrator of a crime:
As a general rule, only the actual perpetrator of an offense is criminally responsible in Jewish law. Thus no responsibility attaches to procurers, counselors, inciters, and other such offenders who cause the offense to be committed by some other person. . . . Where a person hires another to commit a crime, criminal responsibility attaches only to the agent who actually commits it, and not to the principal who made him commit it, . . . [unless] the agent is not capable of criminal responsibility . . . or, where the actual perpetrator is an innocent agent. . . . However, the blameworthiness of the procurer did not escape the talmudic jurists: everybody agrees that he is liable to some punishment, lesser (dina zuta) or greater (dina rabba), and the view generally taken is that he will be visited with divine punishment.13
Under such legal principles, Nephi would not have been punishable as a confederate for the murder of the chief judge unless he was somehow extraordinarily involved as an accomplice or exceptionally liable as a principal. Accordingly, the record merely states that the judges hoped that Nephi would “confess his fault [not his guilt] and make known unto [them] the true murderer of this judge” (Helaman 9:17; emphasis added). Thus the judges probably never hoped to accuse Nephi successfully and to put him to death as a confederate in the crime.
Still, when he refused to admit any fault before the judges, those in control had Nephi taken, bound, and brought before the people (Helaman 9:19). In an effort to find evidence against him, the multitude pressed the case further against Nephi and aggressively interrogated him “in divers ways that they might cross him, that they might accuse him to death” (v. 19). Apparently they hoped to convict him of crimes such as false prophecy, reviling, or conspiracy even if they could not convict him as a direct perpetrator of unmitigated homicide. Indeed, if Nephi were truly guilty of homicide and not just of moral turpitude due to collusion, the death penalty would have been mandatory under Nephite and Israelite law (Genesis 9:6; Exodus 21:12; Alma 30:10; 34:11). Offering to drop or reduce other charges, the people offered Nephi immunity from prosecution if he would tell who his agent had been and if he would implicate the agent through disclosure of the agreement between himself and the agent (“acknowledge thy fault; . . . here is money; and also we will grant unto thee thy life if thou wilt tell us, and acknowledge the agreement which thou has made with him,” Helaman 9:20), indicating that the people must have realized that they were not in a strong legal position to pursue capital charges of homicide against Nephi.
The offer of money drew an outburst from Nephi: “O ye fools, ye uncircumcised of heart, ye blind, and ye stiffnecked people” (Helaman 9:21). Of course, it is hard to imagine Nephi considering a bribe under any circumstances. As was discussed in connection with Zeezrom’s half-hearted attempt to bribe Amulek with his six onties, receiving a bribe in any form was strictly denounced by the law of Moses as one of the most salient characteristics of judging unrighteously: “And thou shalt take no gift: for the gift blindeth the wise, and perverteth the words of the righteous” (Exodus 23:8; see Deuteronomy 16:19; 27:25),14 although “there is no penalty and no non-penal sanction prescribed in the Bible for taking bribes; . . . it was in the nature of unethical misconduct rather than of a criminal offense.”15 Still, the giving or receiving of bribes was condemned vehemently and repeatedly by the prophets and sages in Israel (e.g., 1 Samuel 8:1–3; Proverbs 17:23; Isaiah 1:23; 5:23; 33:15; Jeremiah 5:28; 2 Nephi 15:23), as it was also harshly condemned in other ancient cultures. For example, changing a final judgment, possibly under the influence of a bribe or some other personal benefit, resulted in removal from office under section 5 of the Laws of Hammurabi. Especially in cases of homicide, the payment of money (kofer) to the victim’s heirs, let alone to the government, to exculpate oneself from the just imposition of capital punishment was strictly prohibited under the law of Moses: “Ye shall take no satisfaction for the life of a murderer, which is guilty of death” (Numbers 35:31).16
Detection of the Transgressor by Revelation
In response to the people, Nephi revealed other things to them, specifically that Seantum was the murderer, that they would find blood on the skirts of his cloak, and that he would confess his crime and would affirm Nephi’s veracity when they would say to him, “We know that thou are guilty” (Helaman 9:34–36). Elsewhere in biblical law, other guilty parties were detected by various forms of revelation or divination. The casting of lots, for example, was often used to put an end to disputes and separate powerful men from each other (Proverbs 18:18). “In important cases the lot-casting was performed ‘before Yahweh’ or ‘before the face of Yahweh’, [i.e.,] at a holy place.”17 In the case of Achan, Joshua detected the offender by a form of revelation in which the Lord first identified the tribe, then the clan, then the family, and then the man who was the culprit (Joshua 7:14–15).
Whether by casting lots or some other means of selection, “the procedure in question had the character of a sacral act”18 because divine indicators were brought to bear in the legal process not to judge as man judges but to see justice and to reach proper judgment consonant with God’s mind and will.
Execution Based on Self-Incriminating Confession
Just as Achan confessed his guilt in Joshua 7 as soon as he was detected by the oracle of God as the soldier in the camp of Israel who had hidden the contraband booty under the carpet of his tent, so Seantum immediately confessed his guilt, having been exposed by the glance of God’s all-searching eye: “According to the words [of Nephi] he did deny; and also according to the words he did confess. And he was brought to prove that he himself was the very murderer” (Helaman 9:37–38).19 Nephi and the five investigators were then liberated. All this transpired on the day of the burial of Seezoram (vv. 18, 38), which was the day after the murder. One can only assume that Seantum was soon put to death, although the record gives no further details about his demise.
The precipitous judicial use of Seantum’s self-incriminating admission may strike modern readers as unceremoniously abrupt, and it may also seem out of line with the legal requirement that a conviction must be based on the testimony of two eyewitnesses. Yet this Book of Mormon account is in harmony with another technicality of righteous judgment that can be found in the early biblical period. While it is true that it was commonly held in the rabbinic period that no man could be put to death on the strength of his own testimony alone, for “no man may call himself a wrongdoer,”20 especially in a capital case,21 there was an arcane exception to this rule known from earlier times. In the Old Testament are found four episodes that support the idea that self-incriminating confessions could be used under certain circumstances in justifying punishment for unobserved criminal acts. The four cases are (1) the detection and execution of Achan (Joshua 7); (2) the man put to death for admitting that he had killed Saul (2 Samuel 1:10–16); (3) the two assassins of Ishbosheth, the son of Saul, who were similarly executed (2 Samuel 4:8–12); and (4) Micah, the son who voluntarily confessed stealing from his mother (Judges 17:1–4). How the ancients reconciled these four cases with the rigid rule that required two witnesses has long been a subject of jurisprudential attention.22 The rabbis explained that the four early biblical cases did not violate the two-witness rule, on several possible grounds: because they were confessions outside of court, because they came “after [the] trial and conviction [and were] made for the sole purpose of expiating the sin before God,” or because they were “exceptions to the general rule . . . [since they were] related to proceedings before kings or rulers” instead of before judges.23 These distinctions seem valid especially, as Falk points out, in the case of Achan, whose conviction was “corroborated by an ordeal [the casting of lots]” and whose confession was confirmed “by the production of the corpus delicti [the illegal booty under his tent floor].”24
Thus one can conclude with reasonable confidence that, in the biblical period, the two-witness rule could be overridden in the case of a self-incriminating confession, but not easily, and only if (1) the confession occurred outside the court or the will of God was evidenced in the detection of the offender, and (2) corroborating physical evidence was produced proving who committed the crime. Quite remarkably, Seantum’s self-incriminating confession was precisely such a case on all counts, and thus his execution would not have been legally problematic. His confession was spontaneous and occurred outside of court. The evidence of God’s will was supplied through Nephi’s prophecy. The tangible evidence was present in the blood found on Seantum’s cloak. The combination of these circumstances would have overridden the normal concerns in biblical jurisprudence about using self-incriminating confessions to obtain a conviction.
Given the complicated and important ancient legal issues presented by the case of Seantum, it is little wonder that the text makes special note of the fact that Seantum “was brought to prove that he himself was the very murderer” (Helaman 9:38). No further evidence was legally needed to convict him, and one may assume that it was proper that he was summarily executed.
Although the case of Seantum was quite unusual and therefore probably did not serve to establish an evidentiary precedent that was used in many legal cases in subsequent Nephite history, this outcome was significant in several other ways. It certainly drew a vivid distinction between the unrighteous judgments that were being handed down by the self-serving Gadianton judges and the self-effacing righteous judgment effectuated by Nephi. At this time in Nephite history, when the influence of the church was in steep decline in the city of Zarahemla, God’s entrance into this proceeding demonstrated that he was aware of the corruption of political officials to the point of openly sustaining and validating the words of his prophets. In this case especially, righteous judgment equates with God’s judgment, and at least for a few years many of the people were convinced that Nephi was “a prophet” (Helaman 9:40), and some even thought he was “a god” (v. 41). While most of these people soon reverted to their wicked ways, the case had been made that God knew well and condemned the wickedness and unrighteous judgments of the robbers and assassins who continued to plague the Nephites.
Thus the case of Seantum would have sustained and encouraged the righteous few in this society in their adamant determination to resist civil corruption, to challenge and expose secret combinations, to induce confessions of secret wrongdoings, and to judge courageously and righteously themselves. Because of Nephi’s ability to prophesy correctly in the case of Seantum, several people would find themselves more inclined fifteen years later to believe the prophecy given at that time by Samuel the Lamanite (that the sign of the Messiah’s birth would be given within a five-year window); and a few of those people would be willing to believe in that prophecy even up to its final day of expiration, even to the point of risking their lives in order to maintain their belief in the power of Samuel’s prophecy (3 Nephi 1:9). Perhaps for these reasons, the righteous historians at the end of this era looked back on the trial of Seantum as an important highpoint. They placed this episode at the very center of the book of Helaman, featuring it as a salient victory by God’s prophets over the factions of the wicked.
1. John W. Welch, “Was Helaman 7–8 an Allegorical Funeral Sermon?” in Reexploring the Book of Mormon, ed. John W. Welch (Salt Lake City: Deseret Book and FARMS, 1992), 239–41. See especially Helaman 7:11, 15. In a typical funeral, family members would wail and cry, tear part of their clothing, veil their faces, cut their beards, put on sackcloth, and sit in ashes. See John W. Welch and Robert D. Hunt, “Culturegram: Jerusalem 600 B.C.,” in Glimpses of Lehi’s Jerusalem, ed. John W. Welch, David Rolph Seely, and Jo Ann H. Seely (Provo, UT: FARMS, 2004), 36–37 and sources cited at 40n41.
2. As discussed in connection with King Noah’s role in the trial of Abinadi, kings in Israel did not function as judges in day-to-day civil or criminal matters; see Hans J. Boecker, Law and the Administration of Justice in the Old Testament and Ancient Near East (Minneapolis: Augsburg, 1980), 40–49. And under Jewish law, the king exercised no ordinary judicial powers whatever; see Babylonian Talmud (hereafter TB) Sanhedrin 2:1, 18a. Extending this principle separating judicial roles from administrative powers, the law of Mosiah seems to have given judges the power to judge but not the power to initiate legal actions (Mosiah 29:28–29; Alma 11:2).
3. On the use of “contentions,” rîb, in a legal context, see the discussion above regarding the case of Sherem.
4. Donald A. McKenzie, “Judicial Procedure at the Town Gate,” Vetus Testamentum 14, no. 1 (1964): 102.
5. Roland de Vaux, Ancient Israel: Its Life and Institutions (New York: McGraw-Hill, 1965), 1:59–61; H. A. Brongers, “Fasting in Israel in Biblical and Post-Biblical Times,” in Instruction and Interpretation: Studies in Hebrew Language, Palenstinain Archaeology, and Biblical Exegesis, ed. A. S. van der Woude (Leiden: Brill, 1977), 3–7; and Stephen D. Ricks, “Fasting in the Book of Mormon and the Bible,” in The Book of Mormon: The Keystone Scripture, ed. Paul R. Cheesman (Provo, UT: Religious Studies Center, Brigham Young University, 1988), 129–30, showing that fasting in connection with mourning and burial was a pre-exilic Israelite practice expressing both grief and homage. As recently as with the death of Sadat in Egypt (1981), the day after his death was proclaimed a day of national mourning and fasting.
6. In the commotion, the five who had been sent were not identified as being the same as the five suspects until after the burial of the chief judge: “They were brought, and behold they were the five who were sent” (Helaman 9:13).
7. Boaz Cohen, “Evidence in Jewish Law,” Recueils de la Societé Jean Bodin 16 (1965): 107. “Two witnesses is a sine qua non of any conviction and punishment.” Haim H. Cohn, “Evidence,” in The Principles of Jewish Law, ed. Menachem Elon (Jerusalem: Keter, 1975), 599. See also Pietro Bovati, Re-Establishing Justice: Legal Terms, Concepts and Procedures in the Hebrew Bible (Sheffield, England: JSOT Press, 1994), 268–75; and Robert R. Wilson, “Israel’s Judicial System in the Preexilic Period,” Jewish Quarterly Review 74, no. 2 (1983): 237.
8. Haim H. Cohn, “Practice and Procedure,” in Elon, Principles of Jewish Law, 582; and TB Sanhedrin37b.
9. Irene Merker Rosenberg and Yale L. Rosenberg, “‘Perhaps What Ye Say Is Based Only on Conjecture’—Circumstantial Evidence, Then and Now,” Houston Law Review 31, no. 5 (1995): 1387.
10. For more on unobserved crimes and witnesses in the Bible, see Bovati, Re-Establishing Justice, 273.
11. M. Athidiyah, “Scapegoat” (Hebrew), Beit Mikra 6 (1961): 80.
12. The familiar pattern is discussed in several chapters above, although this time the suspect was taken first to the people for interrogation rather than to the judge.
13. Haim H. Cohn, “Penal Law,” in Elon, Principles of Jewish Law, 469–70. Ze’ev W. Falk, Hebrew Law in Biblical Times (Jerusalem: Wahrmann, 1964), 70, argues that the case of David and Uriah supports the idea that the law “held a man responsible for the acts of his servants performed under his orders,” but David’s case is better understood as falling in the domain of divine punishment and blameworthiness, not legal liability.
14. Tikva Frymer-Kenski, “Israel,” in A History of Ancient Near Eastern Law, ed. Raymond Westbrook (Leiden: Brill, 2003), 2:992–93; and Haim H. Cohn, “Bribery,” in Elon, Principles of Jewish Law, 510–11.
15. Cohn, “Bribery,” 510; and Bovati, Re-Establishing Justice, 198.
16. Falk, Hebrew Law in Biblical Times, 73.
17. Johannes Lindblom, “Lot-Casting in the Old Testament,” Vetus Testamentum 12, no. 2 (1962): 169.
18. Lindblom, “Lot-Casting in the Old Testament,” 169. See Proverbs 16:33.
19. Bovati, Re-Establishing Justice, 94; and Wilson, “Israel’s Judicial System,” 238.
20. TB Sanhedrin 9b; and Haim H. Cohn, “Confession,” in Elon, Principles of Jewish Law, 614. Jewish law worried about the unreliability of confessions made by emotionally distressed persons or that confessions would be extracted by torture or other abuse. Cohn, “Confession,” 614–15. Bernard Susser, “Worthless Confessions: The Torah Approach,” New Law Journal 130, no. 5976 (1980): 1056–57.
21. “No man may be allowed to forfeit his life (as distinguished from his property),” but lesser punishments could be imposed by self-incriminating confessions or admissions of liability. Haim H. Cohn, “Admission” and “Confession,” in Elon, Principles of Jewish Law, 612–14, quotation on p. 614.
22. Kirschenbaum finds the evidence inconclusive: “Whether this pentateuchal requirement of two witnesses, adopted as standard Israelite criminal procedure (1 Kings 21:10, 13), was construed loosely, as an alternative or supplement to confession—as would appear from David’s judicial decisions—or whether it was interpreted strictly, as excluding confession—as taught by the Oral Tradition . . . —must remain an open question to the critical scholar.” Aaron Kirschenbaum, Self-Incrimination in Jewish Law (New York: Burning Bush Press, 1970), 33. Cohn is not so tentative: “The rule against self-incrimination dates only from talmudic times.” Cohn, “Confession,” 614.
23. Cohn, “Confession,” 614.
24. Falk, Hebrew Law in Biblical Times, 60.
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