This is a question of Jewish law in a case pertaining to murder/killing in the course of a robbery. The defendant was in a bank and stabbed a guard with a knife; the guard died instantly. There were two witnesses, one of whom tried to warn the defendant that he would be subject to death if he killed the guard. However, the murderer did not acknowledge her warning. The other witness just stood idly by. If we are trying to offer a defense for the defendant, what would Jewish law say that might help do so?

If the questioner is asking from the point of view of Jewish law, then there would be no capital case against the defendant, although s/he may be convicted of a lesser crime such as assault.  That is because the Rabbis were skittish about applying the death penalty and therefore crafted the evidentiary procedures such that each of the witnesses, who may not be related either to the defendant, the victim, or each other, must separately warn the defendant not only that what s/he is about to do violates Jewish law, but that it carries the death penalty, and then, because the witness may not have heard these warnings, s/he must respond, "Even so, I am going to do this."  Furthermore, if more time elapses between each of his/her responses to the witnesses and the time it takes one to say "Shalom alekha rabi mori" (Peace be upon you, my rabbi, my teacher), then we presume that the defendant has forgotten the warnings, and the case is thrown out of court!  Clearly, in approaching capital cases in this way, the Rabbis knew that they were effectively making a death penalty all but impossible, as they themselves attest in Mishnah Makkot 1:10.  Having taken the death penalty off the table, however, they might well convict the culprit of a lesser crime, for which the evidentiary requirements would be less stringent. 

 

If the questioner is asking about a Jew witnessing this case in an American court, however, then American legal rules would apply, and the defendant, in all likelihood, would be condemned to death or to life without parole, depending on the state's law.  That said, many years ago there was an episode of the television show "Bananza" in which a Jew moved to town, while sitting on a hil witnessed one man chasing another with knife in hand, both disappear in front of a building at the foot of the hill, he hears a scream, and then a man dressed in the same clothes as the pursuer emerges from the other side of the building, with knife in hand.  When pressed to testify against the culprit, he refuses for most of the hour-long show, much to the consternation of the townspeople, on the grounds that Jewish law would classify this as indirect evidence at best and therefore inadmissible in court, especially for a capital conviction.  By the end of the show, everyone is thanking him because it turns out that someone else dressed in similar clothing was in the building, and it was that person rather than the culprit who committed the crime.  Jewish writers!

 

Rabbi Elliot Dorff

 

 

 

Second, for guilt to be established in Jewish law, two competent witnesses are required. Here, as one witness simply stood there, there is an argument that could be presented about that witnesses competency.

 

Third, the witnesses must warn the person who is about to transgress against that act in a way that assures the one about to act hears and understands the warning, and is aware of the severity of their action and the consequences. The issues of adequacy, and of receiving and understanding the warning would be things to raise as a possible line of defense here.  

 

These are all issues to explore in developing a potential defense.

 

Rabbi Joe Blair

 

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