chapter 13 A Tale of Two or Three Witnesses: Witness Testimony in Greco-Roman, Qumranic, and Rabbinic Court Procedure

Richard Hidary Stern College for Women and Bernard Revel Graduate School, Yeshiva University

Conviction for in early modern English law required “the Testimony and deposition of two lawfull [sic] and credibleWitnesses.”1When it came time for the Constitutional Convention to deliberate on this clause, the Delaware delegate John Dickinson inquired about “what was meant by the ‘testimony of two witnesses,’ whether they were to be witnesses to the same overt act or to two different overt acts.”2 In response, Benjamin Franklin encouraged inserting language requiring that the two witnesses testify “to the same overt act” con- sidering that “persecutions for treason were generally virulent; and perjury too easily made use of against innocence.”3 This language was accepted in an 8 to 2 vote, resulting in Article III, Section 3 of the U.S. Constitution:

No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act.

While the founding fathers sounded resonances of the biblical law of testimony in their drafting,4 they could not have known that they were replaying a debate between ancient Jewish factions over how to interpret those biblical laws. In

1 “Charles II, 1661: An Act for Safety and Preservation of His Majesties Person and Government against Treasonable and Seditious Practices and Attempts,” in Statutes of the Realm: Volume 5, 1628–1680, ed. J. Raithby (Great Britain Record Commission, 1819), 304–306, article V. British History Online, accessed April 23, 2017, http://www.british‑history.ac.uk/statutes‑realm/vol5/ pp304‑306. This requirement was inherited from the Treason Act 1547 and the Treason Act 1554 and was repeated in the . 2 M. Farrand, ed.TheRecordsof theFederalConventionof 1787 (New Haven:Yale University Press, 1911), 2:346. 3 Ibid., 348. 4 Sheldon Finkelstein, “A Tale of Two Witnesses: The Constitution’s Two-Witness Rule and the Talmud Sanhedrin,”Litigation 36 (2010): 13–17.

© koninklijke brill nv, leiden, 2021 | doi:10.1163/9789004443891_014 a tale of two or three witnesses 297 fact, the question of whether to interpret “two or three witnesses” as concurrent or cumulative testimony was precisely at play in Qumranic and rabbinic texts. This paper explores this exegetical question against the background of Greek and Roman court procedure.5 It argues that the exegetical debate over witness testimony encodes fundamental differences between these groups regarding their view of truth, interpretation, and the divine versus human roles in pursu- ing justice.6 The Pentateuch legislates witness requirements three times, twice regarding capital punishment and the last including all cases:

If anyone kills a person, the manslayer may be executed only on the evi- dence of witnesses; the testimony of a single witness against a person shall not suffice for a sentence of death.7 Num 35:30

A person shall be put to death only on the testimony of two or three wit- nesses; he must not be put to death on the testimony of a single witness.8 Deut 17:6

A single witness may not validate against a person any guilt or blame for any offense that may be committed; a case can be valid only on the testi- mony of two or three witnesses.9 Deut 19:15

5 For a comparison of Roman and biblical laws from the early 5th cent. CE, see Robert Frakes, Compiling the Collatio Legum Mosaicarum et Romanarum in Late Anqituity (Oxford: Oxford University Press, 2011). Although the work does cover laws of testimony (ibid., 219–221), it does not mention the specific law of two or three witnesses. On the benefit of using one legal system to better understand another, see Boaz Cohen, Jewish and Roman Law: A Comparative Study (New York: The Jewish Theological Seminary of America, 1966), 129. 6 The reliability of witness testimony and the procedures for cross-examination continues to challenge modern law as well. See, for example, Elizabeth Loftus, Eyewitness Testimony (Cambridge: Harvard University Press, 1979); and Richard Underwood, “The Limits of Cross- Examination,” American Journal of Trial Advocacy 21 (1997): 103–129. On the impact of episte- mology on court procedure, see John Jackson and Sean Doran, “Evidence,” in A Companion to Philosophy of Law and Legal Theory, Second edition, ed. D. Patterson (Oxford: Wiley-Blackwell, 2010): 172–183; and Donald Nicolson, “Truth, Reason and Justice: Epistemology and Politics in Evidence Discourse,” The Modern Law Review 57 (1994): 726–744. 7 Biblical translations follow NJPS unless otherwise noted. 8 NJPS translates “two or more” with a note “Lit. ‘three.’” I have chosen the literal translation in order to leave open the ambiguity of the phrase that will be debated by the later sources below. 9 See previous note. See also the comprehensive analysis of these verses at Bruce Wells,