ALIBI (literally, "elsewhere"):
By: Lewis N. Dembitz
A form of defense by which the accused undertakes to show that he was elsewhere when the crime was committed. Such a defense could of course be made in the criminal procedure of the ancient Jews: for witnesses were admitted for the defense as well as for the prosecution; and the rules concerning the competency of witnesses and the mode of examination were pretty much the same for the witnesses on either side. It is therefore needless to speak here about the Alibi of the accused. But there is another kind of Alibi which is peculiar to the Talmudic law, dealing as it does with the presence or absence of the witnesses of an alleged crime from the place where it was committed. It is drawn from the passages about the "plotting witnesses" (): "If an unrighteous witness rise up against any man . . . then shall ye do unto him as he has thought [plotted] to do unto his brother" (Deut. xix. 16-19, R. V.).
The law against the "plotting witness" applied to civil as well as to criminal cases. The underlying principle is thus set forth in Mishnah Makkot, i. 4:The Plotting Witness.
"Witnesses are not 'plotters' unless they are confuted as to their own persons. How is this? Suppose they say, 'We testify against such and such a man that he has killed somebody.' Now, if others should say to them, 'How can you say so? for the murdered man [or the supposed murderer] was at the time of the deed in our company at such and such a place.' This would not prove them 'plotters.' But if the opposing witnesses say: 'How can you testify so, seeing that you were with us on that day at such and such a place?' This proves them 'plotters'; and upon such testimony they may be put to death."
Two witnesses, being required to prove any fact, were called a set (); three witnesses were no more than a set (ibid. 7); and a new set of witnesses was deemed sufficient to refute the former set and to convict them of "plotting," provided they could prove an Alibi as to the two or three witnesses of the prosecution. But if these were at different places, the absence of each from the place where the disputed act occurred must be testified to by at least two witnesses.Effect of Contradictory Testimony.
As to the casuistry of a case in which more than three witnesses (that is, more than one set) had testified, or in which one of the original witnesses was found to be disqualified by kinship or bad character, the balance of opinion is that the same set of counter-witnesses could refute and brand as plotters any number of original witnesses as they came up in separate sets.
The case is also put, in which witnesses (the first set) against the accused are branded as plotters by a second set, and those of the second set are exposed in like manner by a third set; that thereupon the man originally accused and the second set of witnesses would be punishable, and the first witnesses would stand justified. This process, following the opinion adopted in the Mishnah, may be continued indefinitely, as long as no execution of judgment has taken place. To this rule, however, R. Judah objects, on account of the mischief that would result from such encouragement of informers (ib. 5).
The Sadducees maintained that the false witnesses could not be punished until the sentence against the original defendant was carried into effect; but thePharisaic sages pointed to the words of Scripture, "as he had thought [plotted] to do"; not "as he did." However, any procedure against the plotting witnesses is to take place only after the defendant has been condemned; which rule is drawn from the words of Scripture, "soul for soul," the defendant being deemed dead when he is condemned.Punishment of Plotting Witnesses.
In case the accused has been actually put to death upon false testimony, the plotters can not be punished; but when the judgment is only for stripes, or for money, or property, the execution of the judgment does not bar a prosecution of the plotters (Maimonides, "Hilkot 'Edut," xx. 2). Still, in all such cases the convicted plotters are rendered infamous, and can never be witnesses thereafter (ib. 1). It does not follow, however, that witnesses proving the absence of the witnesses for the prosecution from the locus in quo should not be heard at the trial, in a manner similar to other witnesses for the defense.
The punishment to be inflicted upon plotting witnesses when the defendant is condemned to death is distinct enough; but when he is condemned to exile in one of the cities of refuge for involuntary manslaughter, it does not suffice to send the false witnesses to the city of refuge: they must on the contrary be punished with stripes, on the ground that every offender against "thou shalt not" (negative commands) is thus punished, unless a different punishment is pronounced and is practicable.
An analogous case occurs where witnesses denounce a man of the priestly line as being the son of a divorced woman, which would render him unfit for the priestly function. In this case there can be no retaliation in kind, and the witnesses must be flogged (Mak. i. 1).Indemnity.
Again, if the false witnesses testify that the defendant's ox has killed a human being, or that some one is a Jewish bondman, or has by theft incurred the penalty of being sold into bondage—they are flogged: such is the tradition (Mak. 2b). The words of Scripture (Deut. xix. 21), "eye for eye, tooth for tooth, hand for hand, foot for foot," offer no difficulty; for as this law was in other cases carried out by the award of a money-compensation, the judgment rendered on the testimony of the plotting witnesses for the loss of an eye, a tooth, a hand, or a foot, would be a judgment for money simply. In case the false witnesses are condemned to make good in money the amount of an unjust judgment, they are not punished with stripes; the rule being that "those who pay do not suffer stripes." The plotting witnesses pay between them only once the sum which the party against whom they testified would have lost by their falsehood (Mishnah Mak. i. 3, Gem. 5a).
In some civil cases it is not so plain how much injury would result from an unjust judgment; and here it seems that the sages felt the necessity for a calculus of probabilities. The Mishnah (Mak. i. 1) formulates these cases (of witnesses found guilty of "plotting"):
"We testify against N. N. that he has divorced his wife and has not paid her her jointure (ketubah). But [it is objected], will he not some day have to pay her that jointure? [Answer:] The judges should estimate how much a man is willing to pay of the given amount in acquittance of a jointure (inasmuch as it is payable only when the wife is widowed or divorced; while if she dies before the husband, no claim exists, since he is her heir). Or: We testify against N. N., that he owes A. a thousand zuz [$160] payable in thirty days (while in fact he owes him this sum payable in ten years). The judges should estimate how much a man will give to retain the money in his hand for ten years rather than for thirty days."
Such questions are often answered in modern times by life-tables, dower-tables, and, generally speaking, by the calculation of compound interest; but the Hebrew judges of early days had neither the statistical nor the mathematical elements on which to base their calculations. They had to guess as best they could.