The perfect witness who won't testify

[Robert]

Well, here's one (invented) : suppose a trial is nearing the end, the defendant has not submitted any good points, whereas the prosecution has a raft of hard evidence which the defence doesn't challenge. Just before the jury is to go out, the judge inadvertently says something that he shouldn't have said, e.g. he reveals some previous comviction of the defendant's that was supposed to have been kept secret, or he mumbles something like "let's hope they fry this Chinese mother******" at which point his conduct of the trial is challenged by the defence team...all sorts of things can happen. The defence might find an obscure loophole which means there's no charge to answer.Who knows?

[Robert]

There was one possible eyewitness to an actual murder. If I recall, the man's name was 'Shine.' However, it's by no means simple and I think there may be two or three versions of the story. I was in contact with a family descendant a few years ago, but too much time had passed and it was a question of glimpses and shadows.

[RivkahChaya]

What about those cases where there has been a miscarriage of justice because of a mere technicality? Does the judge simply close the case and send the jury home, or does he instruct them to find the defendant not guilty (in which case they could refuse?)?

I'm not sure what you are talking about. You'll have to give me an example.

A "miscarriage of justice" by a "mere technicality" can mean a lot of things. But if at some point during a trial, the prosecution realizes it has the wrong person, the trial can be stopped, and the person let go. Also, charges can, and often are, dropped before a case goes to trial.

A judge cannot instruct a jury to bring back a particular verdict. A judge can deliver a judgment notwithstanding the verdict. This happens in civil trials most often, when a judge immediately lowers a ridiculous award (which happens sometimes because a jury doesn't realize something, like a jury awards "all the money McDonald's makes on coffee in one day," thinking that will be about $200,000, but it's really $20,000,000). Very rarely, a judge will enter a JNV in a criminal case, by declaring a defendant not guilty, after a jury finds him guilty, but a judge cannot do the reverse, because that violates both double jeopardy, and a person's right to a trial by jury.

The prosecutor in a criminal can appeal a JNV; essentially, the judge is saying that the jury acted unreasonably, and a different jury would not have come up with the same verdict. The judge needs to be prepared to defend the decision. If he (or she) can't to an appeals panel, while the prosecutor can demonstrate that the jury reached the correct decision based on the evidence, the guilty verdict can be reinstated. I don't know that this has ever happened, just that the law allows for it.

[RivkahChaya]

Oh, as far as giving evidence-- if you don't want to, but have information crucial to the prosecution's case, you will be subpoenaed. If you don't show up, the judge will issue a warrant for your arrest, and the sheriff will track you down and bring you in, where you will be escorted to the witness stand. The prosecutor will be given permission to treat you as "hostile," which means he will be allowed to ask you leading questions, that otherwise would be considered feeding you information.

After the trial, if the prosecutor is feeling generous, he might let you go. Or, he might charge you with obstruction of justice, failure to appear, and anything else he can think of; if he thinks you hurt his case, he most certainly will. If you lie on the stand, he will charge you with perjury. If your hijinks somehow contribute to a mistrial (for example, what should have been a slam dunk results in a hung jury), it will happen all over again, and you might end up in "protective custody" during the second trial to make sure you show up this time.

Now, it certainly looks better for the prosecution if all the witnesses are cooperative, which is why you get plea bargains, immunity, police protection if you have been threatened, and all kinds of sweetness and kid-glove handling from the prosecution at the outset. But the prosecution is not going to leave someone dangerous on the street because you are having a crisis of conscience.

I'm not sure what things were like in 1888, but the power of subpoena did exist.

That's why I think there's a aura of legend around the witness who was otherwise perfect, except for an unwillingness to testify. I find it hard to believe that one person had something to say that made an iron-clad case all by itself, but furthermore, I find it hard to believe that if such a witness did exist, the police would walk away just because he did not want to testify.

I think one of several things must have been going on:

The witness was not perfect. He may have made an identification that satisfied the police, but it might not have been firm, and as evidence for a trial, it needed corroboration, either by another witness, by physical evidence, or by a confession of some type, even if it were rantings that were reported second-hand (which might be permissible in the case of a doctor reporting symptoms).

The witness wasn't very impressive. He didn't speak English, and wouldn't go far in convincing a jury. The police believed him, but juries had different experiences of people.

On top of that, if the suspect was confined and unable to harm any more women, there wasn't much of a rush to continue work on the case, and there were probably other things-- the torso murders, for one.

The witness may have expressed a religious objection, or just a with to speak with his rabbi, and with all the other problems, the police decided to deal with his religious problems later, when, and if, a trial came up.

As the story got retold, the mundane parts, abour corroborating evidence and sorforth fell away, and the more interesting and distinctive things, like the witness consulting his rabbi became the focus of the story, and instead of the witness at trial being not so necessary, the story came to be about the witness holding up the trial.

[Robert]

What about those cases where there has been a miscarriage of justice because of a mere technicality? Does the judge simply close the case and send the jury home, or does he instruct them to find the defendant not guilty (in which case they could refuse?)?

[RivkahChaya]

I suppose some people might have problems giving evidence in murder trials in death penalty countries, or might refuse to serve on juries. This might be owing to moral or religious scruples. [emp. added]

In the US, if you are called to jury duty, and the case is a death penalty case, you are asked during voir dire if you would have a problem with either delivering a verdict of guilty, knowing that the defendant could get the death penalty, or voting for the death penalty during the penalty phase of the trial (in the US, a jury, not a judge, or statute, sentences a person to death). If you answer yes to either question, you are dismissed from the jury pool. Generally, the lawyers don't ask the reason, because you can't be dismissed from a jury because of race, religion or gender (although, lawyers can dismiss a certain number of people without stating the cause, so occasionally, people still do get dismissed for those reasons, because the opposing lawyer doesn't want to challenge it). If you say you are opposed to the death penalty, the lawyer can dismiss you for that reason alone, so it makes no sense for him to explore the cause, because if you state that it is because you are Catholic, or Jewish, or whatever, the other lawyer may challenge the dismissal.

A jury where everyone has stated that they do not object to the death penalty in theory, or are not opposed to it in principle, or do not believe that it is "cruel and unusual," and could personally vote for it (that last bit is important-- there are lots of people who are not philosophically or religiously opposed to the death penalty, but could not personally deliver the verdict) is referred to as "death penalty qualified," meaning qualified to hear a death penalty case.

I'm not sure if anyone has tried using this as grounds for appeal, in that the jury was not representative of the community, especially if it really can be demonstrated that the community from which the jury was taken is overwhelmingly opposed to the death penalty, but if it were, it probably would not work, because jury nullification, is technically illegal, albeit, almost impossible to prove, and there is no punishment for it, per se (there might be punishment for a juror who threatens or coerces other jurors into nullifying, but that's probably because it would be jury tampering). At any rate, knowledge of a juror's intent to nullify is grounds for dismissal (United States v. Thomas, 1997), and stating that one opposes the death penalty, and would not impose it under any circumstances is pretty much stating intent to nullify.

[Robert]

As far as I know a Christian might have a religious problem with working Christmas Day if it fell on a Sunday, but that's a different issue.

I suppose some people might have problems giving evidence in murder trials in death penalty countries, or might refuse to serve on juries. This might be owing to moral or religious scruples. But as you say, there is nothing unique to Judaism that would cause special problems for a Jew called to testify in a state trial, whatever the defendant's nationality or putative crime.

[RivkahChaya]

If you notice at the Stride Inquest the Jews from the Club were "affirmed" rather than "sworn".

I wasn't talking so much about what actually happened in London at the time, as what a Jew might have feared happening based on legend. And that was a coroner's inquest, not a trial.

So, to clarify : suppose that Schwarz had seen BS actually pull a knife on Stride, but that Schwarz had not waited to see what happened next, and had bolted. Surely Schwarz would have been allowed to identify BS at a later date?

Not in front of a rabbinical court where execution was the issue, because a rabbinical court had the further requirement that the witness warn the perpetrator of the consequence of the crime (ie, execution) if he continued.

But Talmudic law does not apply to an English court, which is why the whole line of reasoning is a little silly if you ask me.

It's entirely possible that a Jew did not want to be the sole witness at a death penalty trial for personal reasons, or even for perceived religious ones, because he had been brought up with a particular religion-based view of the death penalty, and did not want to be part of it being administered, but that is not that same thing as saying it's "against his religion." By way of comparison, a lot of Christians find the idea of working on Christmas highly objectionable, just because they've been brought up spending the day a certain way, but it's my understanding that there isn't anything in the bible that actually prohibits one from working on Christmas. (Yes, I know that within the Roman Catholic Church, Christmas is a holy day of obligation, and one must attend mass, but I don't know whether work is not permitted on those days by the RC church.)

[Robert]

So, to clarify : suppose that Schwarz had seen BS actually pull a knife on Stride, but that Schwarz had not waited to see what happened next, and had bolted. Surely Schwarz would have been allowed to identify BS at a later date?

[Wickerman]

Since a Jew couldn't swear on the bible, the courts were rumored to use other methods of intimidation, sometimes pretty frightening, or painful.

If you notice at the Stride Inquest the Jews from the Club were "affirmed" rather than "sworn".

William Wess [West], who affirmed instead of being sworn,...

Lewis Dienishitz, having affirmed, deposed:...

Morris Eagle, who also affirmed, said:...

Regards, Jon S.

[Paddy]

Thankyou for the detailed information. I found it very interesting.

Pat.................

[RivkahChaya]

There's no rule that you cannot testify against a member of your own family, not in a secular court, nor a rabbinical court.

The only "conflict" if you can call it that, is in the Scotland Yard police drawing conclusions from testimony to circumstantial evidence, that would not be permitted in a rabbinical court. For example, a prosecuting attorney, in both the US and the UK (and in secular courts in Jerusalem right now, where there is no death penalty) can suggest that the last person known to be with the victim, either by eyewitness testimony, forensic evidence, or both, is probably the killer. According to the Talmud, a murder case for which the death penalty is the expected result cannot be prosecuted that way. An "eyewitness" can be an eyewitness only to the actual crime, not to very suggestive circumstances right before it. There are other qualifications for death penalty witnesses.

If the witness had a problem with testifying, it might have had to do with this, although I am not sure what a rabbi would have said. There are some rabbis who would have advised him to cooperate with the police, especially in the case of a repeat murderer, not someone the rabbi thought had killed once, but would not do it again. On the other hand, the fact that the suspect was locked away, and not likely to be freed, might have made a difference.

Honestly, not all rabbis not, in the US would give the same advice, and I can only guess at what the ones I know would say. I can't guess what theoretical rabbis in 1888 would say, other than it would not be "don't narc on your brother," because that rule just doesn't exist.

In 1888, there were no rules regarding criminal law and mental health. There have been rabbinical court decisions since then, but those mostly guide the state of Israel, or advise families with a mentally ill member who has harmed someone, but not to the point of committing a felony, although there is fear that will happen in the future, and the interest is prevention.

From the time of the pogroms, until the state of Israel, rabbinical courts handled only civil matters, such as marriages, divorces, disputes between two Jews, and religious matters, and the 1888 was in this hole, when very little new law was made, and this also happened to be the time the concept of mental illness was forming.

So if a Jew refused to testify, it had to do either with a misunderstanding of the rules of directly witnessing something, or it possibly had to with fear over being sworn in. See my earlier posts, where I talked about horror stories from the middles ages, which may have more or less truth, but certainly could scare a Jew away from wanting to testify. Since a Jew couldn't swear on the bible, the courts were rumored to use other methods of intimidation, sometimes pretty frightening, or painful.

[Paddy]

Hi Folks
Re Earlier witness discussion.

I have often thought that if a witness refused to testify, if might have been one of Aarons family. Maybe by providing an alibi? This could have explained Andersons statement about the Jewish people refusing to give up one of their own to justice.

With this in mind can anybody tell me if there is any Jewish law regarding a brother giving cause to the death of his brother. If Aarons relation thought he was mentally ill and would be hung, I wonder how it would sit with their concience. Also is their any rulings in the Jewish faith regarding mental health?
If a rabbi were to advise I wonder what he would have said?
I would really appreciate your comments, thanks.

Pat................

[Bridewell]

I noticed a book in 'The Works' in Newark the other day which was some kind of gazetteer of places in London in 1888. I'm going to Newark in the morning so I'll try and get hold of a copy.

Regards, Bridewell.

[Errata]

Hello Simon, Errata. Here's an historical link.

Cheers.
LC

http://books.google.com/books?id=Zf9...square&f=false

I'm familiar with the work of the YMCA, it's the German Association part I thought was an immigrant assistance organization.