Crime and Punishment in Jewish Law: Essays and Responsa

By Walter Jacob; Moshe Zemer | Go to book overview
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from those governing secular legal systems. Thus, the Jewish laws governing the eligibility of witnesses and the admissibility of evidence are much more severely limited than those of secular legal systems. For example, a gentile is not eligible as a witness in a Jewish court (except in the special case of freeing a woman for remarriage when her husband has disappeared, aguna). Also, a child may not be a witness, nor a woman, nor a gambler, nor may any man testify in behalf of a near relative.

Since the laws of evidence in Jewish courts are so different from those governing secular courts, it would seem meaningless to draw any analogies between the two on any matter involving the rules governing witnesses or admissible evidence. Yet such a question can be meaningful if we go beyond the actual rules (or certain rules) of evidence and try to reach the ethical basis upon which they rest. In this deeper sense, the older (Jewish) system may give some moral guidance in some of the newer legal problems. This is surely the meaning of the question here. What really is asked is: According to the ethical standards underlying Jewish legal procedure, would it be deemed morally right to use a tape obtained by electronic eavesdropping as evidence in a secular court case?

Of course, it is obvious that classic Jewish law could not possibly know of the modern devices whereby voices recorded on a tape can be repeated in the hearing of the court, and used thus as testimony of guilt or of financial obligation. Furthermore, as has been stated, Jewish law as to testimony is extremely strict in defense of the innocent, or the possibly innocent, and thus reveals an especially high ethical standard. Then let us assume that the sound of the voice from the tape may be considered the same as the voice of a witness testifying. Would such a witness be accepted as competent in Jewish law even though the tape is not a living witness?

First as to criminal law, even if it were accepted as a witness (assuming that for the moment), it would not be sufficient testimony, because in Jewish criminal law there must be two witnesses together in the court at the same time, both testifying to having observed the same crime at the same time. So, along with the tape, there would have to be a living witness as the second witness, and he would have to testify that he has personal knowledge through his own senses of the same crime to which the tape attests. The tape alone could not be admissible because

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