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Richard Kronenfeld
Adult Ba'al Teshuvah Ph.D. Physicist

Laws of Witnesses and Modern Technology: The Eyes Have It

LAWS OF WITNESSES: THE EYES HAVE IT

 

 

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Whoever smites a person, according to the testimony of witnesses shall one kill the killer, but a single witness shall not testify against a person regarding death.”  [Bamidbar/Numbers 35:30]

“By the testimony of two witnesses or three witnesses shall the condemned person be put to death; he shall not be put to death by the testimony of a single witness.”  [Deuteronomy/Devarim 17:6]

“A single witness shall not stand up against any man for any inquiry or for any error, regarding any sin that he may commit; by the testimony of two witnesses or by the testimony of three witnesses shall a matter be confirmed.”   [Deuteronomy/Devarim 19:15]

As the foregoing verses demonstrate, a basic principle of Jewish law is that at least two eyewitnesses are required to provide definitive guilt of a defendant having committed a crime (with a few notable exceptions).

An obvious corollary of this rule is that halachic jurisprudence does not rely on circumstantial evidence as does Western jurisprudence. A dramatic example is cited in Sanhedrin 37b: “Our Rabbis taught: What is meant by BASED ON CONJECTURE? — He [the judge] says to them: Perhaps ye saw him running after his fellow into a ruin, ye pursued him, and found him sword in hand with blood dripping from it, whilst the murdered man was writhing [in agony]: If this is what ye saw, ye saw nothing.”

Several recent scientific advances, however, need to be analyzed for their potential effect on the law of witnesses.

First, research by psychologists and social scientists indicates that eyewitness testimony is not always reliable. The literature is replete with cases in which witnesses selected the wrong suspect from a police lineup, leading to unjust convictions that were ultimately overturned on appeal. It’s not that witnesses are necessarily lying, but rather that as fallible humans, their recollection of events can be flawed. The Torah has provisions for dealing with dishonest/conspiring witnesses, but what about sincerely mistaken witnesses?

Second, are video cam recordings of an event in any way equivalent to direct observation by a person?

Third, DNA evidence has emerged as nearly infallible, albeit circumstantial, evidence. Leaving aside the question of whether it can be used halachically to obtain a conviction, can we use it to exonerate the wrongly convicted? Such is already being done in the civil courts, particularly as the result of an initiative, the Innocence Project, led by Barry Scheck, an attorney specializing in DNA evidence who became famous as a member of O. J. Simpson’s legal defense team.

Let me preface this discussion with the assertion that the Sages were far from being naïve about witness testimony being invalid. A classic example is described in I Kings 21, where King Achav wanted to buy a vineyard belonging to Naboth the Jezreelite, who refused to sell. Achav’s wicked wife Iezevel then suborned perjury from two unscrupulous witnesses who said that Naboth had uttered blasphemy, and so he was stoned to death.   Just as Achav was about to take possession of the vineyard, Hashem sent Eliyahu HaNavi to say to him, “Will you murder and also inherit? …In the place where the dogs licked up the blood of Naboth, the dogs will lick up your blood.” Likewise, Eliyahu delivered the prophecy that the dogs shall eat Iezevel in the Valley of Jezreel.

Granted, this was a special case because it involved the king. For lesser mortals, certain safeguards were built into the legal process. Most notably, if two witnesses testified against a defendant, and subsequently two other witnesses impeached the testimony of the first set by testifying that the first set couldn’t have seen the defendant commit the crime because both sets of witnesses were together somewhere else at the time, the second set of witnesses was always believed, presumably because they had no personal interest in the case other than serving the cause of justice. (If the second set were relatives or friends of the defendant seeking to have him acquitted, their testimony would be disqualified.)

The above-mentioned cases concern conniving witnesses, but in at least one instance the possibility of witnesses being mistaken was considered. As we know, before Hillel II promulgated the Jewish calendar used universally today, the determination of Rosh Chodesh for each month, which was essential for establishing the dates of the holidays, relied upon testimony of two witnesses regarding the initial appearance of the New Moon. (Sanhedrin 11b)  As a precautionary measure, if two witnesses came together, they were examined separately by the Sages, and their testimonies were compared to see how well they matched. Furthermore, when Rabbi Yochanan ben Zakkai was the head of the Sanhedrin, he questioned witnesses in a room where he had drawings of different possible appearances of the moon regarding the position of light and shadow, and asked the witness which picture matched what he saw. Rabbi knew that some of the illustrations were physically impossible, so a witness who chose one of them could be disqualified immediately. [Jacob Neusner, Development of a Legend pp. 206-209] (Chazal’s knowledge of mathematics and astronomy was amazing, especially since they didn’t have computers, calculators, or telescopes!)

A similar procedure could be the basis of dealing with mistaken eyewitness testimony today, provided that it would be possible to find conditions that would definitively validate or invalidate the testimony.

Our second question deals with the admissibility of a video camera feed in beis din. An anonymous discussion in 2010 on the web page Mi Yodeya [Who knows?] on stackexchange.com suggests that for many purposes of kashrus a video camera should suffice, although one participant raises the issue that people may forget if there’s a camera in the room, as opposed to having a live person watching. The main opinion at questions/1482 expresses doubt that a video camera would be sufficient for the issue of yichud [improper seclusion of a woman with a man other than her husband]; a later contributor in 2012 recalls having seen a tshuva [response] that one could cut the wire or disable the camera. On the other hand, seeing someone stealing money on video would be sufficient proof to require restitution. The main opinion holds that video might not suffice to impose the death penalty on a murderer. Overall, it appears that a camera can’t substitute for a live observer, at least for major offenses.

Regarding our third question, the admissibility of DNA evidence, let us begin with a simpler case. In a special issue of the Yeshiva University Torah-to-Go, Rabbi Hershel Schachter, one of America’s foremost contemporary halachic deciders, writes,

“The Ramban (Chiddushim to Chullin 42a and Milchamos, Shabbos 48a) follows the principle of the Yerushalmi and notes that Chazal [the Sages] didn’t arbitrarily take positions on facts that could be determined based on experimentation. If we find a dispute that seems like a dispute about facts, we should assume that Chazal did experiment and the dispute is about how to interpret the results.

“When Rav Yitzchak Herzog was the Chief Rabbi of Israel, a dispute arose in the beis din [court] about a paternity tests in which the ex-husband of a divorced couple claimed that he wasn’t actually the father of the child. A blood test was performed and based on the blood types of the ex-husband and the child, it was determined that he could not possibly be the father of the child. Some of the rabbanim on the beis din were reluctant to accept the blood test as evidence. They claimed that halacha doesn’t recognize a blood test as a form of evidence. Rav Herzog wrote a letter stating:

“’I do not deny that I was almost embarrassed…by what you wrote…in such a deprecating manner toward blood tests, from a negative aspect. That is, with regard to the possibility that [a blood test can] clarify that X is not the father of Y. How can there be a question of the credibility of the doctors in a matter which has been clearly accepted by all the masters of medicine throughout the entire world!  … It is unfortunate that while science is progressively conquering worlds and discovering all sorts of secrets, although it too errs at times, we, like ostriches, bury our heads in the sand. It is imperative that we encourage the ablest students of the yeshivot also, to be educated as men of science in each discipline, so that we should not need to turn to others in matters of physiology, chemistry, electricity, etc. concerning things that relate to our sacred Torah.’ [Quotation taken from an article by Prof. Dov Frimer, Assia vol. 35.]

“Chazal always based their rulings on the science that was prevalent in their time. They followed the consensus of scientists and doctors and we have to apply our halachic rulings based on the science of our times.” [Rav Hershel Schachter, “Observing Torah in an Age of Innovation,” YU Torah-to-Go, May 2018/Shavuot 5778, pp. 7-8]

In a subsequent paragraph, Rabbi Schachter adds a caveat:

“Even when accepting scientific evidence, we must use halachic principles to determine how much weight to give to the evidence. Sometimes scientists can determine something with 100% certainty and sometimes their determinations are based on statistics or assumptions. In these situations, halachic principles such as rov (statistical majority) and safek (doubt) must be applied.”  [Ibid., p.8 ]

We now turn to the more complex question of DNA testing. Rabbi David Katz in an article entitled “Is DNA evidence admissible in the halachic system?” comes to the conclusion that “…if the area in halacha is something we absolutely require 100% proof and nothing else (like mamzerut [paternity] or monetary claims), then DNA evidence will still not be admissible. If however it is an area of halacha that allows for a certain margin of error, then in theory DNA evidence will work as well. There are opinions that require/allow DNA evidence if it is strung together with additional forensic evidence (such as a DNA test to identify a body where you also found the person’s wallet with an ID card in it).” [http://www.mevaseret.org/mmy/torah/learn-more/2-uncategorised/55-is-dna-evidence-admissible-in-the-halachic-system]

Another article in Derech Hateva, entitled “Halacha Meets DNA Fingerprinting”, [pp 55-58]  by H. Babich, Ph.D., Biology Department, Stern College for Women, observes that “…the likelihood that the DNA profile of one individual would be an exact match to that of someone else is so remote that it is virtually nil. As a DNA fingerprint pattern could only fit one person out of myriads of people, a specific DNA fingerprint pattern falls under the halachic category of umdenah demuchach, or a totally obvious and logical assumption which is so overwhelmingly apparent that we accept it as fact [Cohen, A., 2000, Scientific evidence in Jewish law, J. Halacha Contemp. Soc., 39:51-94]. Rav Zalman Nechemia Goldberg, halachic authority and Chief Justice of the Rabbinical Court in Jerusalem, noted that the chance of error regarding DNA evidence ranges from a billion to one to a quintillion to one, putting it in the category of a siman muvhok [principal or primary sign] for victim identification [ Jachter, C., 2000, Gray Matter, vol. 2, Yashar Books, Inc., Brooklyn, NY.].”

We note that the article focuses on using DNA fingerprinting to identify people, such as in agunot [long-missing husband] or mamzeirot cases. In criminal cases, may I speculate that consistent with the preference in Judaism for allowing a guilty party to go free and subsequently be punished by the Heavenly Court, as opposed to convicting an innocent person [see Sanhedrin 33a-b for the closely related rules for re-opening a criminal case based upon new evidence], that DNA evidence be admissible only if it is exculpatory, in which case the requirement of two witnesses could be satisfied by taking testimony from the technician who collected the samples regarding the procedures used for collection and preservation, and from the technologist who compared the samples. Beyond this, I defer to those who are expert in halacha and in criminal justice.

About the Author
I'm a native New Yorker (Brooklyn, to be precise) transplanted to the desert as a teen-ager. I hold a Ph.D in Physics from Stanford and have taught mathematics and physics at the high school, community college, and university level. I'm an adult ba'al teshuvah and label myself as centrist Orthodox and a Religious Zionist along the lines of OU, Yeshiva University, and Mizrachi.
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