Guilty Until Proved Innocent??

i have begun a subscription to commentary on the Talmud from Rabbinic sources. it has been very interesting so far. sure, i dont agree with everything, and yes, most of these commentators (and the Talmud itself) dont recognize Yeshua as Messiah, but they still have much to provide in way of analyzing Torah.

here is some commentary on judges that i found particularly interesting:

Chapter 1, Mishna 8

“Yehuda ben (son of) Tabbai and Shimon ben Shatach received the ransmission from them [the previous generation of scholars, listed in Mishna 6]. Yehuda ben Tabbai said: Do not act as an adviser among the judges. When the litigants are standing before you they should be in your eyes as guilty. When they are dismissed from before you they should be in your eyes as innocent, provided they have accepted the decision.”

This mishna focuses on the Jewish judicial system, and its advice is addressed to judges. As always, however, we will find the words of the Sages far more meaningful and relevant than their limited scope might imply.

Yehuda’s first statement is actually difficult to translate. One should not make himself an “orchai hadayanim,” which literally means “a setter up of the judges.” The meaning, according to the majority of the commentators, is that one should not advise a single litigant how to present and plead his case. This will either “set up” the minds of the judges — to be partial towards that litigant, or set up the judgment as a whole in his favor. (The commentators appear to be divided as to whether this advice is restricted to the judges themselves or to any person partial towards a single litigant.)

The message is that the judges should examine the bare facts of the case alone. Neither side should require coaching; each should simply present his or her version of the story as accurately and objectively as possible. The truth (or lack thereof) of either position should speak for itself. There is no room for carefully arranged and acted-out prosecutions or defenses. Posturing, dramatizing, or employing any of the many tactics we have become so accustomed to today to “set up” the minds of the jurors or arouse their sympathy is wholly out of place. The courts must be vehicles of G-d’s objective and unwavering justice.

For that matter, lawyers were virtually inexistent in the traditional Jewish court system. Even the word “lawyer” did not exist in classical Hebrew — as evidenced by the fairly awkward terminology of our mishna. In fact the modern Hebrew term for lawyer is the equally awkward two-word phrase “orech din” (“arranger of judgment”) — stemming from our mishna’s language. And even more emphatically, the pocketbooks of the litigants should not determine (for all practical purposes) the eventual verdict.

The second statement of our mishna is that judges should view the litigants as guilty when they stand trial. They should be wary of the litigants’ every word. Nothing should be glossed over or taken at face value. As the Talmud puts it, “Words of truth are recognizable” (Sotah 9b). When someone is making up or embellishing a story, chances are something will not fit (either that or the testimony will be too smooth and well-rehearsed), and the acute observer will catch on to it fairly quickly. In truth, “Innocent until proven guilty” is one of the most fundamental tenets of Jewish law (Talmud Bava Kama 46b — as well
as many places). Yet, judges must maintain a healthy suspicion towards the litigants. All evidence must be properly scrutinized, and nothing should be taken for granted, whether about the case at hand or about the defendants themselves.

In addition, as the commentators observe, both parties must be viewed as equally guilty. Neither party should be given any sort of preferential consideration due to his background, reputation or social status. “Profiling” too is a modern phenomenon, wholly absent from Jewish tradition. All are equal in the eyes of G-d’s law.

There is a fascinating insight regarding the role of judges as envisioned by the Torah. As we will see, the concept of the impartiality of the judges, as discussed in our mishna, is far more profound than simply a means of rendering proper decisions.

Deuteronomy 19:16-21 discusses the subject of false witnesses. If two men testify in court, say that Jim is a murderer, and they are afterwards shown to be testifying falsely (other witnesses testify that the first witnesses were elsewhere when the crime was allegedly committed), they receive the punishment they attempted to inflict upon Jim. I.e., they are killed themselves. Verse 19 states that the witnesses receive what they attempted (“zamam”) to do to Jim. The implication, according to the Rabbis, is that if the witnesses not only attempted but were also successful (i.e., they were not disproved until after Jim was put to death), they are not punished (Mishna Makkos 1:6). How could actually causing the courts to kill Jim be less severe than
unsuccessfully attempting it?

The Ramban (Nachmonides, of 13th Century Spain) explains as follows: If the false witnesses were successful in putting Jim to death, it must be that in fact Jim deserved death for one reason or the other. G-d would have never allowed him to be put to death had he not truly deserved it. Thus, although the witnesses themselves were liars, they did not truly kill an innocent man. They merely put to death someone who deserved it anyway. If, however, they were unsuccessful, G-d must have thwarted their plans because Jim was really innocent. And so, the witnesses were in fact guilty of attempted murder.

obviously, read in context, the passage doesnt intend to mean “guilty until proven innocent”. but i think it is a wise thing for judges (or anyone deciding a case of conflict) to meticulously look at both parties with no bias toward either and examine the facts before making a decision. otherwise, we will inherently be biased toward one party or the other. this is the concept behind our american legal “adversarial” system.

unfortunately, today, there are often so many biases going into the court that the judge doesnt truly weigh both sides equally.