What is the oldest historical example of cross-examination in trial? Believe it or not, it is in the Bible!
Trial advocates today, as in prior generations, stand on the crest of a wave. The wave is not water, but history. Awareness of the talent and shortcomings of those who came before us in the courtroom teaches us trial technique, inspires us, and shows us mistakes to avoid. Moreover, it is well known that the development of the law is based in part on precedent from the past and is applicable to the present.
John Henry Wigmore said that cross-examination was the greatest engine ever invented for the discovery of the truth. I often ponder this statement and think that other aspects of trial, depending on the case, are more important. But here is an example that supports Wigmore. It is from the New Testament: The Book of Daniel, Chapter 13, titled “Susanna and the Elders,” written around the first century, relaying an occurrence in the sixth century BC. Arguably, it is the oldest recorded example of not only cross-examination, but also sequestration of witnesses.
Here is what happened, according to the Bible:
Susanna, a young woman in Babylon, was known for her beauty and good character. Her husband, Joakim, was also well-respected. Their home was often visited by many members of the community. One feature of the couple’s home was a beautiful garden, which neighbors would frequently walk through for pleasure. Susanna herself would often walk in the garden around midday.
Two men, elders of the community, had recently been selected to act as judges. They also enjoyed walking in the garden and would watch Susanna every day as she took her walk. The two elders began to “desire her.” Both were inflamed by passion for her, but concealed their desire from each other. They eventually shared their views with one another.
On one particular occasion, the elders spied Susanna alone bathing in the garden. They proposed sex with her and told her that if she refused, they would accuse her of adultery and she would be stoned to death. She adamantly refused. Her outcry brought people from the house into the garden. The elders told those gathered that they observed her adulterous conduct. She continued to cry and deny the accusation.
The following day, a hearing was conducted. Numerous people attended. The two elders stated their accusation: While walking by themselves in the garden, they observed Susanna arriving with two maids. She shut the garden door and then dismissed the maids. A young man, who had been hiding, went over to her and they lay together under a tree. From the end of the garden where the elders were, they saw the crime occurring and hurried toward them.
Although they saw them together, the elders were unable to catch the man; he was too strong and fled. The elders said Susanna should be put to death for her crime. Since they were both elders and judges, the assembly accepted their word: Susanna was condemned to death.
But just before the first stone was cast, a young man, Daniel, shouted out, “Go back to the scene of the trial; these men have given false evidence against her.” All the people hurried back.
Daniel said, “Keep the men well apart from each other, for I want to question them separately.” When the men had been separated, Daniel had one of them brought to him. He said, “You have grown old in wickedness and now the sins of your earlier days have overtaken you with your unjust judgements, your condemnation of the innocent, your acquittal of the guilty, although the Lord has said, ‘You must not put the innocent and upright to death.’ Now then, since you saw her so clearly, tell me what sort of tree you saw them lying under.” The elder replied, “Under an acacia tree.”
He dismissed the man, ordered the other to be brought to him, and said, “Son of Canaan, not of Judah, beauty has seduced you, lust has led your heart astray! Now then, tell me what sort of tree you surprised them under.” He replied, “Under an aspen tree.”
Then the whole assembly shouted, blessing God, the Savior of those who trust in him. They turned on the two elders whom Daniel had convicted of presenting false evidence out of their own mouths. From that day onward, Daniel’s reputation stood high with the people, and arguably, sequestration of witnesses and cross-examination became a precedent and a foundation of justice.
Apocryphal or not, Susanna and the Elders is an inspirational account of the value of cross- examination, just as Wigmore had stated, as well as an ancient precedent of witness sequestration, which is still important today.
Paul Mark Sandler, trial attorney and author, can be reached at [email protected]