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36 Litig. 13 (2009-2010)
A Tale of Two Witnesses: The Constitution's Two Witness Rule and the Talmud Sanhedrin

handle is hein.journals/laba36 and id is 217 raw text is: A Tale of Two Witnesses: The
Constitution's Two-Witness
Rule and the Talmud Sanhedrin
by Sheldon M. Finkelstein

A: It takes at least two witnesses.
Q: How many witnesses does it take to convict someone
accused of treason?
This question on Jeopardy! would stump most contestants
who could not remember Article III, Section 3 of the United
States Constitution, which states:
No Person shall be convicted of Treason unless on the
Testimony of two Witnesses to the same overt Act, or on
Confession in open Court.
But the origin of that constitutional provision goes way
back in time, to the dawn of Western civilization. The two-wit-
ness rule connects a strange assortment of historical figures,
including an American accused of spying in World War II, the
Founding Fathers, Montesquieu, and the judicial procedures
of the ancient Israelites, explained in the Talmud Sanhedrin.
The U.S. Supreme Court delved only partly into the his-
tory of the two-witness rule when it decided the case of Cra-
mer v. United States, 325 U.S. 1 (1945), by a 5-4 vote. The
Court held in favor of an accused Nazi sympathizer, without
acknowledging that Israelites first developed the judicial pro-
cedure that saved the defendant from a possible death sentence
for treason.
The defendant in Cramer, Anthony Cramer, was a German-
American who served in the Kaiser's army in the Great War
before immigrating to the United States. He settled here and
eventually became a U.S. citizen. In the middle of World War
H, he met with two German saboteurs who had been placed
ashore by submarine under cover of darkness. Cramer had
Sheldon M. Finkelstein practices law at Podvey Meanor Catenacci Hildner
Cocoziello & Chattman, a Professional Corporation, in Newark, New
Jersey. He also serves on the Council of the ABA Section of Litigation.
He wishes to acknowledge the research assistance of Damian Conforti of
Podvey Meanor in the preparation of this article.
LITIGATION Summer 2010

known one of the saboteurs, Werner Thiel, back in Germany.
They had worked together, roomed together, and jointly had
ventured in a small and luckless delicatessen enterprise. Cra-
mer also knew Thiel's fiancee, Norma Kopp and, apparently
as a favor to Thiel, offered to write her and invite her to meet
Thiel in New York. Cramer himself met with Thiel and his
fellow saboteur at two locations in midtown Manhattan for
drinks, to tipple and trifle. There was no evidence of who
paid for the drinks. Cramer agreed to hold cash for Thiel in
a safe deposit box. Soon thereafter, Cramer was charged with
treason, a capital offense.
Norma Kopp was the prosecution's star witness. Her testi-
mony was the most damaging to Cramer because it included
admissions of guilty knowledge of Thiel's hostile mission
and of Cramer's sympathy with it. Cramer was convicted of
treason, for aiding and abetting the saboteurs. But the Supreme
Court found that Cramer's admissions were not confessions
in open court and were the uncorroborated testimony of one
witness [Kopp] not without strong emotional interest in the
drama of which Cramer's trial was a part. Cramer, 325 U.S.
at 4.
In reaching its decision, the Court majority did not rely
solely on Article III, Section 3 of the Constitution. It reviewed
records from the Constitutional Convention and other sources
that were far more ancient.
The debate on the language of that constitutional provision
in Philadelphia on August 20, 1787, was sparse:
Mr. Dickenson, thought the addition of giving aid &
comfort unnecessary & improper; being too vague and
extending too far. He wished to know what was meant
by the testimony of two witnesses, whether they were
to be witnesses to the same overt act or to different overt
acts. He thought also that proof of an overt-act ought to
be expressed as essential in the case.

Volume 36 Number 4

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