“Time out”: A judge’s most powerful tool?

Chapter 1, Mishnah 9

שִׁמְעוֹן בֶּן שָׁטָח אוֹמֵר, הֱוֵי מַרְבֶּה לַחְקֹר אֶת הָעֵדִים, וֶהֱוֵי זָהִיר בִּדְבָרֶיךָ, שֶׁמָּא מִתּוֹכָם יִלְמְדוּ לְשַׁקֵּר:

Shimon ben Shetach used to say: be thorough in the interrogation of witnesses, and be careful with your words, lest from them they learn to lie.

L: What do you think? Should we begin with Bunim?

H: Before you talk about what Irving Bunim has to say, let’s first examine the language.    ַלַחְקֹר (does not necessarily mean “to examine.”  It really means to examine something in depth.

L: Yes, I appreciate your point.  My question, though, is about the last part of this short Mishnah, the part about being really careful in the words you use when talking to these witnesses.  What does the Mishnah mean when it says “be careful of your words, lest through them they [the witnesses] learn to lie”?

H: I believe it implies that if you do not use words carefully when speaking to the witnesses, you can actually lead them to lie.

L: You know, if I were a judge and took this advice to heart, I might start double-thinking myself. Should I say anything? After all, I don’t want to cause someone to lie in the court.

H: (laughing) Maybe you want someone else to jump in and talk to the witnesses. But there is no one else. You are it.

L: Yes, you are the judge. It’s your job to move the hearing along.  You have to –

H: …say something

L: It’s not a job I would like to have.  When there’s a dispute, I tend not to be the one who steps in the middle. I’d prefer the parties to talk it through by themselves without the intervention of a judge…let’s see what Bunim has to say about this.

“One of the more reliable sings of true testimony is the ability of the witness to ‘stick to his story.’ Should a witness be giving a false account there is the tendency to vary his report at teach telling. Effective cross-examination therefore, requires that the witness be approached repeatedly with seemingly different questions which actually cover the same ground from different angles. Be searching in your examination of witnesses by being repetitious and thorough.”

“Be extremely careful with your questions, however, lest from you words they learn to falsify.’

 There is an almost unconscious tendency to phrase our sentences in a leading manner which might indicate to the discerning the answer we would like to receive. Modern psychology has confirmed this important insight to the point where it is recognized that even the inflection and tone of an interviewer asking questions in a poll can affect the results he will get.”

H: So, according to Bunim, this Mishnah leads back to what I said before. There is a negative here. You don’ t have the give-and-take in this type of courtroom, that should ordinarily would have with a judge.

L: Right. It sounds as if the witnesses cannot say anything until spoken to.

H: Correct.

L: So, it’s not a dialog that the judge is encouraging.

H: Correct.

L: The judge is asking questions, and the witness has to answer the questions.  What Bunim is saying about the judges is that they don’t want a dialog. They don’t want and back-and-forth. They don’t want to schmooze with you.

What you don’t have here is a “defense attorney” speaking to the plaintiff.

So, if the defendant is saying that ‘I dug a hole in my yard,’ the judge would ask, “Did you know about that hold.”

The neighbor’s animal wandered into the yard, fell into the hole, and is now injured. The judge will ask the witness if there was a fence, if the hole was somehow blocked off, etc., etc.

From what I read here the judge cannot blame anybody. He must ask the witness what he saw, questions that lead to the truth.  I realize this example is oversimplifying the detailed discussions on this subject brought by the Gemorah.

The judge just has to be careful not to become accusatory, when speaking to the witnesses.

Let’s look at this from another perspective. As a doctor, Howie, how did you deal with a patient that did not want to talk?  Look at this patient in terms of the Mishnah and getting witnesses to answer questions. How do you ask this patient questions if he or she does not want to talk?

H: I recall one patient – I even remember her name - where I walked into the room and instantly saw she was so angry that I said to her, “You know what. I’m going to see another patient and then I’ll come back to you and hope you will settle down, so that when I see you in a few minutes you and I can discuss your diagnosis and how I can help you.

L: And what happened when you returned?

H: She was all different.  She was calm and able to talk with me.

L: So, sometimes giving a person some space or time can help you have that conversation or ask probing questions.

H: Yes.

L: Here we go back to our children or grandchildren. Of course, we hope they never see the inside of a courtroom.   

H: You want to make sure that they understand that give-and-take is very important when you’re having a conversation, when you are trying to learn something from someone else.  Sometimes you have to give others time to think in order to have that give-and-take.  Like with my patient, that may mean you must allow the person time to settle down (particularly if they are agitated), so that when we pick up our conversation, we can get to where we need to go.